Panel Asked to OK Injunction Against Vacated Anti-Bias Health Care Rule

An ACLU attorney argued it would be unprecedented for the appeals court to find that an invalidated rule requires an injunction to keep it from being enforced in the future.

Doctors perform surgery at a hospital in Philadelphia in 2018. (AP Photo/Matt Rourke)

NEW ORLEANS (CN) — A three-judge Fifth Circuit panel was urged Wednesday to rule that a district court judge should have issued an injunction to prevent the government from trying to enforce in the future an invalidated Obamacare rule protecting patients seeking transgender or abortion-related care.

The defunct provision of the Affordable Care Act prohibited physicians from citing religious concerns to refuse to perform abortions or sex-reassignment surgeries.

Attorney Joseph Davis, representing plaintiffs Christian Medical and Dental Associations and Franciscan Alliance, told the judges on the New Orleans-based appeals court that his clients want the court to overturn a decision by U.S. District Judge Reed O’Connor in Texas to not enforce the injunction.

O’Connor, a George W. Bush appointee, sided with plaintiffs and ruled the provision violated their religious freedom, but he declined to enforce the injunction they sought, saying it was unnecessary because the Trump administration’s Department of Health and Human Services was not defending the challenged rule.  

In his October 2019 opinion, the judge wrote that “defendants now ‘agree with plaintiffs and the court that the rule’s prohibitions on discrimination on the basis of gender identity and termination of pregnancy conflict with Section 1557 and thus are substantively unlawful under the [Administrative Procedure Act].’”

The religious medical providers appealed nevertheless, asking the Fifth Circuit for a ruling on whether O’Connor erred.

The American Civil Liberties Union intervened in the case. Attorney Joshua Block with the ACLU’s LGBTQ & HIV Project told the judges that requiring the district court to enforce an injunction against a statute not currently in effect “would really be unheard of” in a federal appellate court.

Arguing on behalf of the defendant Department of Health and Human Services and acting Secretary Norris Cochran, attorney Ashley Cheung said the appeal is unnecessary and should be thrown out.

“The plaintiffs prevailed in district court,” Cheung told the judges.

She added later, “If they think there will be a different conclusion in the future, they should take action in the future instead of seeking declaratory judgement now.”

U.S. Circuit Judges Jennifer Walker Elrod, a George W. Bush appointee, and Don Willett and Kurt Engelhardt, both appointees of Donald Trump, sat on Wednesday’s panel. They did not say when or how they will rule on the matter.

The rule, enacted in 2016, would have required federally funded medical providers and insurers to treat and pay for patients regardless of their sex or gender identity and banned discrimination based on termination of pregnancy. Originally put in place during the Obama administration, the regulation was allowed to be defeated under Trump’s presidency.

Critics of the rule, which was based on an interpretation of section 1557 of the Affordable Care Act, said it would force doctors to perform abortions or sex-reassignment procedures against their will.

The original lawsuit challenging the rule was brought in August 2016 by Catholic hospital system Franciscan Alliance, Christian Medical and Dental Associations and Specialty Physicians of Illinois, along with six states – Texas, Wisconsin, Nebraska, Kentucky and Kansas.

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