Federal Appeals Court Rejects Becerra Rule on Forced Procedures

HHS Secretary supports federal action against state abortion laws.

Becerra Rule on Forced Procedures Violates Religious Freedom


In a win for religious liberty and medical autonomy, the U.S. Fifth Circuit Court of Appeals ruled against an attempt by the Biden administration to force physicians to perform abortions and gender reassignment surgery, on August 26.

Health and Human Services (HHS) Secretary Xavier Becerra proposed a rule that would have compelled doctors and hospitals to provide abortion and “gender transition” services against their religious or moral objections.

A coalition of Christian and religious liberty groups and nearly 20,000 doctors sued the government over the proposed regulation, just as it challenged a similar Obama administration rule.

Religious Objections

A bill signed into law by President Bill Clinton in 1993 forbids the federal government from putting “undue burdens” on the exercise of religious convictions, and the appeals court followed the law, says Joe Davis, an attorney with the Becket Fund for Religious Liberty.

“The Religious Freedom Restoration Act (RFRA) offers very broad protection for religious liberty,” said Davis. “I think it was a straightforward case.”

Davis argued the caseFranciscan Alliance v. Becerra, on behalf of Christian medical and dental associations, Specialty Physicians of Illinois, and the Franciscan Alliance, a Catholic hospital system.

The HHS rule has less to do with access to certain procedures than with forcing doctors to comply, says Davis.

“You’re attempting to elevate ideology over medicine,” said Davis. “If you want to go ahead with abortion and gender reassignment surgery you don’t need to violate freedom of conscience rights to do that.”

Trans Ideology

The transgender movement is based on the idea that we can change our human nature by transforming our bodies, says Michelle Cretella, M.D., a pediatrician, and member of the Catholic Medical Association.

“The Biden administration, along with every other leader of the Western world, is forcing transgender ideology onto every man, woman, and child to usher in the Fourth Industrial Revolution—that is, transhumanism,” said Cretella. “In fact, transgenderism itself is transhumanism.”

Transhumanism is an ideology that envisions using science, biotechnology, and artificial intelligence to make humans more than human.

Obama Pushed Rule

The effort to require insurers to cover and physicians to perform gender transitions and abortions under the Affordable Care Act (ACA) was started by the Obama administration when Joe Biden was vice president and picked up again by Becerra, says Davis.

“They want to weigh in on this very hot debate that’s going on about gender transitions, and they want to resolve it in one direction through force of non-discrimination law,” said Davis. “We ordinarily let the medical profession come to conclusions about this and leave it up to the judgment of doctors; whereas, the HHS rule runs against very long tradition, like the Hippocratic Oath.”

In 2016, the Obama administration proposed a federal regulation under Section 1557 of the ACA regarding sex discrimination that would have forced doctors to help “transition” patients by altering their sex organs, even if the doctor had medical or conscientious objections to doing so. The rule required medical facilities that offered medically necessary procedures, such as hysterectomies, to women to provide the same procedures for transgender men.

Physicians and health care providers could not decline for religious reasons and could be fined if they disobeyed.

The Becket Fund responded quickly, accusing the government of violating the Administrative Procedure Act and the RFRA. A federal district court issued a preliminary injunction, preventing the rule from going into effect. Later, court rulings in 2019 and 2021 also sided with Becket, and the rule became moot.

Becerra Tries Again

The Biden administration claims that because the 2016 rule is no longer in effect, the court order protecting Franciscan Alliance’s religious liberty is contestable.

However, in Franciscan Alliance v. Becerra, the federal district court issued a permanent injunction, providing broad protection for Franciscan Alliance’s religious liberties and protecting religious organizations against lawsuits brought by private individuals, says Davis.

“We won the case on our merits,” said Davis. “I think it’s critically important that people in health care continue to follow their judgment on these issues and recognize that there are protections that will be there for them if and when they do.”

The federal government can still appeal the ruling on forced procedures in the Fifth Circuit or even the U.S. Supreme Court, says Davis.

“We don’t know if they’re going to do that or not,” said Davis. “We feel very confident in our arguments. I think that they are very ideologically committed to these procedures, and they want to change the norms of the medical profession.”

The Becket Fund argued another case in December 2021 regarding the same ACA provision, Religious Sisters of Mercy vs. Becerra, before the Eighth Circuit Court of Appeals, which could be decided soon, says Davis.

Harry Painter (harry@harrypainter.comwrites from Oklahoma.

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