Transgender Care Ruling Provides Legal Tool to Fight Abortion

An appeals court ruling that the federal government can’t force Christian health-care professionals to perform transgender-related care may give conservatives an opening to challenge abortion access in states where the procedure is still legal.

The Department of Health and Human Services doesn’t have the authority to require professionals to provide services and procedures they object to based on religious beliefs, the US Court of Appeals for the Fifth Circuit said in an opinion Friday, affirming an order from a lower court.

The most relevant part of the opinion, as it relates to abortion, was in upholding the district court’s determination that including the procedure in the HHS rule violates the Religious Freedom Restoration Act, said Rachel Rebouche, dean at Temple University’s law school.

“The Fifth Circuit appears to agree with the district court that the provision violates the hospital’s religious freedom,” she said.

That could mean that the ruling becomes a tool used by those who want to oppose abortion in states that haven’t passed restrictions since the US Supreme Court overturned Roe v. Wade.

“It kind of maps a potential way forward for conservative lawyers in areas where abortion will remain legal if you’re dealing with Catholic or evangelical Protestant health-care providers and rural areas in those communities,” said Mary Ziegler, a law professor at the University of California, Davis and an authority on the history of abortion rights.

Conscience Rights

Federal law since the 1970s has recognized the right of health-care workers and institutions to refuse to participate in providing abortion, a right known as conscientious objection, said Lucinda Finley, a law professor at the University of Buffalo.

Joseph Davis, a counsel at Becket Fund for Religious Liberty who argued the case for the Franciscan Alliance, said the administration’s interpretation of Section 1557 of the Affordable Care Act attempted to depart from this history, imposing an abortion mandate notwithstanding conscience protections. “The injunction restores those protections,” he said.

“What this decision does is that it just continues that long tradition of protecting conscience and health care,” Davis said.

The case challenged a 2016 HHS rule that a health-care professional or entity’s refusal to treat or pay for gender-confirming health care is discrimination under the Affordable Care Act. It pits the Franciscan Alliance, a Catholic hospital network, against the HHS. In 2019, the US District Court for the Northern District of Texas said Christian health-care professionals don’t have to perform transgender-related care contrary to their religious beliefs.

The American Civil Liberties Union, which helped defend the case, didn’t respond to requests for a comment.

The Religious Freedom Restoration Act is a 1993 federal law that prohibits the government from adopting laws or regulations that substantially burden religious exercise unless it has a compelling reason and uses the most narrow means to do so. It can be a powerful tool, despite the availability of other conscience laws, because the Supreme Court has used it to define complicity more broadly and to cover a range of actors who are not as directly involved with abortion and contraception, Ziegler said.

Boiling It Down

This case gives opponents another mechanism to go after abortion where it is legal, said Andrew Seidel, a constitutional attorney with Americans United for Separation of Church and State.

“They are coming for a nationwide abortion ban or fetal personhood,” Seidel said. “They’re picking up the tool as they’re driving down the road to this end anyway.”

Seidel, who is the author of a book being published in September called the “American Crusade: How the Supreme Court is Weaponizing Religious Freedom,” said the case is part of a pipeline that runs from the Northern District in Texas through the Fifth Circuit to the Supreme Court.

“That is giving us some of the most retrogressive and conservative opinions in the country,” he said.

With assistance from Mary Anne Pazanowski