Midnight Suits Over Biden Health Rules Pave Way for Trump Agenda

Conservative states and groups are turning to the courts to cut down Biden-era transgender and abortion rules, clearing a path for a new regulatory regime as the Trump administration gets underway.

Rules from President Joe Biden‘s administration interpreting Section 1557 of the Affordable Care Act as shielding transgender people from health discrimination, and the Health Insurance Portability and Accountability Act as protecting patient abortion records, are among those opponents are trying to persuade courts to tear down.

Filed by over a dozen states and the Christian legal group Alliance Defending Freedom, the trio of lawsuits came just days before President Donald Trump was sworn in and provide legal pathways for his administration to roll back Biden-era rules it likely won’t support.

The federal government’s “priorities have changed, and the interpretation of those laws has probably changed,” said Andrew Twinamatsiko, director of the Center for Health Policy and the Law at the O’Neill Institute at Georgetown University.

Since taking office, Trump has issued executive orders critics see as scaling back transgender health and abortion protections. The future of Biden’s rules before the courts has yet to be decided, though legal experts say the litigation might prevent the rules from being enforced while the new administration rolls out its own regulations.

The lawsuits “could be a potential legal strategy for putting these regulations on ice as the administration figures out how to respond, how to arrange its priorities,” Twinamatsiko said.

Abortion Rule

Idaho, Indiana, Tennessee, and other states sued the US Department of Health and Human Services on Jan. 17 to block a rule that prevents health providers from sharing records on women’s reproductive services obtained in states where they’re legal. That same day, Missouri filed a similar suit.

The lawsuits over the HIPAA abortion rule join others “filed in forums that these attorneys general believe are going to be open to their arguments,” said Jonathan Miller, chief program officer for Public Rights Project.

PRP is involved with an attempt by Columbus, Ohio, and Madison, Wis., to intervene in lawsuits over the HIPAA abortion rule, in order to take it on should the Trump administration decide not to defend it.

The cases “are meant to create a mechanism for the Trump administration to disavow and eliminate the rule as easily and quickly as possible,” Miller said. “Litigation like this can expedite the process by which rules like this are eliminated if no one is there to defend” the rule.

Trump signed executive orders backing a ban on federal funds for abortions and requiring international nonprofits to show they don’t promote abortion services if they want to continue receiving government money.

HHS Secretary Robert F. Kennedy Jr. hasn’t given specifics as to how his agency would handle abortion policy, though has said he was planning on following Trump’s lead on the issue.

Meanwhile, a federal judge has enjoined the HHS from enforcing the HIPAA abortion rule against a Texas doctor. What position the Kennedy-led HHS takes in the litigation remains to be seen.

Transgender Litigation

Trump signed an executive order in January stating the government would only recognize two sexes and calling on agencies to remove regulations promoting gender ideology. He also signed executive actions blocking the government from supporting childhood gender transitions and opposing transgender women participating in women’s sports.

Trump’s HHS issued guidance defining female, male, woman and other sex-related terms and announced it was prioritizing religious rights in civil rights enforcement. The agency rescinded Biden’s guidance on protecting transgender people from health discrimination.

Alliance Defending Freedom is backing a Louisiana school board in litigation over a variety of Biden administration gender policy efforts.

“We hope that these illegal rules will be eliminated,” said Matthew Bowman, Alliance Defending Freedom senior counsel. “There are several ways to eliminate a rule, none of them are easy. And as we speak here, none of the ones I challenged have been eliminated.”

In its Jan. 17 lawsuit, ADF moved to cut down a US Department of Agriculture mandate tying school lunch funds to anti-gender discrimination provisions and Equal Employment Opportunity Commission gender identity requirements.

That same lawsuit attacked HHS efforts such as the Section 1557 rule, which has been bombarded with lawsuits and resulted in a nationwide injunction blocking its enforcement.

Sarah Parshall Perry, senior legal fellow at The Heritage Foundation, said the ADF and states’ lawsuits might signal policy priorities to the Trump administration, as well as achieve declaratory or injunctive relief.

Perry noted the 1557 rule’s protections stem from an interpretation of the Supreme Court’s Bostock v. Clayton County decision as protecting against gender identity discrimination, and that this position has already been deemed “above and beyond” a plain text reading of the statute by other courts.

Agency Deference

Attorneys said the Supreme Court’s decision overturning the Chevron doctrine, which required courts to generally defer to an agency’s reasonable interpretations of ambiguous statutes, might factor into the lawsuits.

“I think what we’re going to see is sort of an increasing attention paid to very plain text, textualist or originalist interpretations of federal statutory or constitutional law,” Perry said.

During rulemaking, “the Biden administration did take some liberties with some of these particular case laws,” Perry said, pointing to an HHS rule on Section 504 of the Rehabilitation Act, which ADF is also targeting in its lawsuit.

When it comes to the legal strategy behind the lawsuits, Twinamatsiko said, “we have to look at this also from the perspective of the new paradigm” of how much deference is given to agency interpretation after the end of Chevron deference.

“The challengers in these lawsuits could think that the court is the best way to achieve this,” he said.