Trump HHS Urged to Embrace Literal Approach on Hot-Button Rules

The Trump administration is likely to carve wider pathways for physicians to opt out of transgender and abortion services by arguing for a more literal interpretation of the law that excludes gender ideology and other contentious health concepts.

A textualist approach to US Department of Health and Human Services rulemaking is the avenue through which conservative legal experts say team Trump can curb what they consider excesses of Biden administration health policy.

They argue recent US Supreme Court decisions like Loper Bright Enterprises v. Raimondo limiting executive branch authority suggest government overreach in health regulation is over.

The Supreme Court’s “reigning in of agency power and discretion to go beyond what Congress statutorily directed, especially on very important matters, will have an impact, and this aligns with what the Trump administration is doing on deregulation and by trying to minimize the overreach of the federal agencies and federal government,” said Rachel Morrison, fellow at the Ethics and Public Policy Center.

Former President Joe Biden offered regulations during his administration that sought to strengthen protections for those seeking transgender care and abortion services.

But Morrison said Biden’s changes were an “expansive overreach” of the law that complicated physicians’ abilities to use legal protections known as conscience or religious rights to avoid providing services that go against their beliefs.

Under Trump, those “previously second-class rights” will now be “vigorously defended and enforced,” she said.

Others see flaws in the textualist argument.

“‘It’s very difficult to be strictly textual when you are interpreting such a broad statutory mandate, which is why the whole idea of regulations exists, is to use the expertise of the agency to flesh out what Congress was trying to do in passing a particular law,” said Leon Rodriguez, who led the HHS Office for Civil Rights in the Obama administration.

Statutory Significance

The Heritage Foundation’s Project 2025 plan calls for HHS’ civil rights enforcement of sexual discrimination in health to be limited to a “statutory framework.”

That includes “explicitly interpreting the law not to include sexual orientation and gender identity discrimination based on the textual approach to male and female biology taken by Congress” in the Affordable Care Act, under which the Obama and Biden administrations used rulemaking to broaden gender identity protections.

The ACA rule, known as the 1557 rule after its pertinent section of the law, interprets the Supreme Court’s 2020 opinion in Bostock v. Clayton County—which held firing someone for being gay or transgender is illegal—as also protecting against gender identity discrimination in health care.

But Bostock dealt with only transgender status in the employment context—a significant distinction, said Roger Severino, who led the HHS OCR in the first Trump term and authored Project 2025’s HHS plan.

“In the health context, sex clearly matters, and it was not addressed by Bostock,” said Severino, now with the Heritage Foundation. A textualist approach to the rule would have realized that “in medicine, biology matters enormously,” he said.

‘Distinction Without Real Meaning’

Sarah Warbelow, vice president legal at the Human Rights Campaign, argues that Bostock’s being in the labor rather than health context is “a distinction without a real meaning,” and that there’s a long history of courts interpreting employment law in the educational context, which the Affordable Care Act cross-references for the nondiscrimination provision.

Bostock builds on a tradition that goes back to late Justice Antonin Scalia, who in 1998’s Oncale v. Sundowner Offshore Service made a determination that, as Warbelow put it, “the purpose of our nondiscrimination laws is to eradicate discrimination, and that even a purely texturalist approach means reading the statutes broadly to accomplish the mission that Congress set forth.”

In January 2024, Biden’s HHS revised a Trump rule on health providers’ religious and moral rights to object to treatment, laying out the scope of conscience laws under the HHS’ purview.

However, Biden “gave lip service” to federal requirements but “gutted the actual enforcement of conscience rights,” Matt Bowman, senior counsel at the Christian legal group Alliance Defending Freedom, said in a statement. Simultaneously, the Biden administration was “forcing medical professionals to facilitate dangerous ‘gender transition’ efforts and abortions,” Bowman said.

Anthony Archeval, acting director for the OCR, said in a statement that upholding and enforcing statutory protections for the exercise of conscience in health cases is a “priority area” for the administration.

Nicole Huberfeld, a Boston University law professor, said moral or religious violations are “pretty rare” and likely happen most in the “already fraught context of emergencies,” like when the mother’s health is at risk.

“In a medical emergency, who wins? The patient with the emergency or the provider with the conscience exercise?” Huberfeld asked.

Under Trump, she said, the HHS will likely defend people opposing gender-affirming care or things like contraception, sterilization, and abortion that they find religiously objectionable, a shift that “would make it so that the provider denying care wins.”

New Rulemaking

In crafting new rules, the Trump administration has options to maintain a textual approach.

Severino points to Fulton v. Philadelphia, in which the Supreme Court ruled the city violated the First Amendment by trying to force Catholic Social Services to certify same-sex couples as foster parents, and Tandon v. Newsom, where the justices found limiting at-home religious gatherings during the pandemic was discriminatory.

The Religious Freedom and Restoration Act also needs to be enforced, Severino said, referring to a law that prohibits the government from substantially hindering a person’s right to exercise religion.

Warbelow expects the Trump administration could take advantage of the still-undecided Skrmetti v. US challenging Tennessee’s ban on gender-affirming care for minors. The high court heard argument in December. Trump’s Justice Department has since told the court it no longer believes the state law violates the Constitution’s equal protection guarantee.

“The outcome of that case will definitely indicate to them what wiggle room they have, if any, to essentially deny access to health care for transgender people,” Warbelow said.