CINCINNATI (CN) — Attorneys for two groups of doctors urged the Sixth Circuit Wednesday to follow rulings from other appeals courts and grant a preliminary injunction to prevent enforcement of the Affordable Care Act's gender-identity mandate.
The American College of Pediatricians and the Catholic Medical Association claim U.S. District Judge Travis McDonough, an Obama appointee, imposed additional standing requirements on their First Amendment claims when he dismissed their lawsuit in November 2022.
The provider groups filed suit after President Joe Biden signed an executive order upon taking office that established gender identity as a protected trait, an order that required doctors to perform gender-affirming care even if it went against their religious beliefs or medical judgment.
McDonough emphasized in his dismissal opinion that he was not required to follow precedents established by the Fifth and Eighth circuits in similar cases in which those appeals courts upheld permanent injunctions against enforcement of the mandate.
"In the Sixth Circuit," he said, "'the mere possibility of prosecution,' such as the plaintiff's intended course of action falling within the plain text of a non-moribund statute, 'does not amount to a "credible threat" of prosecution. Instead, the threat of prosecution must be certainly impending to constitute injury in fact.'"
The lack of any evidence of enforcement upon doctors' refusals to provide certain treatments for transgender patients was fatal to the physicians groups' complaint, according to McDonough.
The pediatricians claimed in their brief McDonough ignored both Sixth Circuit and U.S. Supreme Court precedent when he took his analysis a step beyond whether there was a credible threat of enforcement.
"The court only asked whether they had established that an injury was 'certainly impending,'" the pediatricians wrote in their brief, referring to the plaintiffs. "And the court applied that requirement as if it necessitated something close to a literal certainty, which this court and the Supreme Court have both said it does not require."
Attorney Chris Schandevel of Alliance Defending Freedom argued Wednesday on behalf of the physicians and called the government's position a "radical interpretation" of federal law.
The attorney made it clear his clients do not object to providing medical care to transgender individuals, only specific gender-affirming treatments, 22 of which were outlined in a list included with their complaint.
U.S. Circuit Judge Chad Readler, a Trump appointee, asked Schandevel about associational standing and, specifically, which member allowed the medical groups to sue on behalf of the doctors.
The attorney cited Dr. Rachel Kaiser of the Catholic Medical Association, an emergency room physician who uses only biological sex in her patient notes and treated a male patient who identified as female.
"We have one emergency room doctor and we're supposed to grant relief because someone, someday might come in to seek treatment?" Readler asked.
"The government has had two and a half years to disavow an intent to enforce," Schandevel answered.
"But they haven't enforced either," Readler responded.
The physicians' attorney pointed out the federal government released a memo in March 2022 that it was investigating and enforcing the mandate, although he noted any specific investigations made by the government were not available.
Attorney McKaye Neumeister argued on behalf of the government and told the panel the physicians failed to meet the burden of proof required for a pre-enforcement challenge.
Senior U.S. Circuit Judge Danny Boggs, a Ronald Reagan appointee, asked whether potential investigations qualify as a harm to allow the suit to proceed.
"Harm is an Article III injury," Neumeister said. "They haven't cited anything that being subject to that type of administrative process rises to the level of an Article III injury."
"What has to happen for them to establish standing?" Readler asked.
"If plaintiffs had identified past enforcement," the attorney answered.
"But this a pre-enforcement challenge," Readler said. "It's hard to believe you're not going to enforce the law given what's been said" by this administration.
Neumeister told the panel the government has not taken a concrete position on the 22 procedures outlined in the providers' complaint, but emphasized it is not required to do so.
"Plaintiffs are not harmed by the lack of further clarity," she said. "Plaintiffs came up with a list of practices and want HHS to develop an enforcement policy. That's not how Article III works." HHS is the Department of Health and Human Services.
U.S. Circuit Judge Andre Mathis, a Biden appointee, rounded out the panel.
No timetable was set for the court's decision, although Schandevel urged the panel to quickly resolve the case prior to any further changes on enforcement of the mandate.
The attorney claimed a decision to uphold the lower court's ruling would be a "death knell to pre-enforcement challenges."
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