On Tuesday in the District of North Dakota, Judge Peter Welte ruled that the Affordable Care Act (ACA) does not mandate the plaintiffs, a coalition of entities affiliated with the Catholic Church and the State of North Dakota,” provide or cover gender-transition procedures in a suit invoking the broad protections provided by the Religious Freedom Restoration Act of 1993 (RFRA).
The court declared that “[the defendant] HHS’s interpretation of Section 1557 that requires the Catholic Plaintiffs to perform and provide insurance coverage for gender-transition procedures violates their sincerely held religious beliefs.”
This decision comes after the consolidation of two suits brought by Catholic-affiliated entities, the Religious Sisters of Mercy, a Catholic order that offers health care, among other organizations, and the Catholic Benefits Association (CBA), a Catholic ministry offering health care, against outgoing Department of Health and Human Services (HHS) Secretary Alex Azar. The suits challenged Section 1557 of the ACA, which bars certain forms of discrimination in health care. The plaintiffs interpreted this section “in a way that compels them to perform and provide insurance coverage for gender transitions and abortions,” the court explained.
Title IX prohibits discrimination in health care “on the basis of sex,” the court explained, and Section 1557 applies that to health care coverage. Section 1557 also “ ‘arguably proscribe(s)’ the Plaintiffs’ refusal to perform or cover gender-transition procedures,” and Whitman-Walker v. HHS “further enjoined incorporation of the Title IX religious exemption” that had said prohibiting discrimination on the basis of sex does not apply to “an educational institution which is controlled by a religious organization” if its application “would not be consistent with the religious tenets of such organization,” the judge explained. The judge found “a clear path for the Plaintiffs to incur liability under Section 1557,” despite HHS’s defense that the 2020 intepretation of Section 1557 includes the religious exemption and RFRA.
The defendants also disputed the claims of the plaintiffs by emphasizing the lack of “threatened enforcement” of Section 1557; but the judge invokes the court’s reasoning in United Food & Com. Workers Int’l Union v. IBP Inc. that says “present intentions may not be carried out, and it isnot certain that changes in leadership or philosophy might not result in reinstitution of the challenged policy.”
The court said the plaintiffs are entitled to permanent injunctive relief based on its findings of RFRA violations by HHS, finding that “(t)he Catholic healthcare entities’ refusal to perform or cover gender-transition procedures is predicated on an exercise of their religious beliefs protected by the First Amendment.”
The plaintiffs also had claimed that the 2020 rule would force them to provide and cover abortion services; the court dismissed these claims for lack of “existing injury” because the current interpretation of Section 1557 by HHS “affords the exact protection they seek.”
The plaintiffs are represented by the Becket Fund for Religious Liberty.
