WICHITA FALLS, Texas – On Aug. 23, Franciscan Alliance, Inc; Specialty Physicians of Illinois, LLC; Christian Medical & Dental Associations; plus the states of Texas, Wisconsin, Nebraska and the Commonwealth of Kentucky filed a complaint in the Wichita Falls Divison of U.S. District Court for the Northern District of Texas against the U.S. Department of Health and Human Services (HHS) and HHS Secretary Sylvia Burwell challenging a new regulation issued by HHS.
The complaint asserts the new rule seeks to override the medical judgment of healthcare professionals across the country with the threat of significant financial liability by forcing doctors to perform controversial and sometimes harmful medical procedures designed to permanently change an individual’s sex, including the sex of children.
According to the new regulation, a doctor must perform such procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm.
The rule requires covered employers, and their healthcare providers and professionals, to perform (or refer for) medical transition procedures.
For example, HHS stated, “A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man, would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals,” while explaining a hysterectomy in this medical transition context would be “medically necessary to treat gender dysphoria.”
Despite comments submitted prior to the final rule being published requesting HHS make it clear that health services need only be covered if they are deemed to be “medically necessary” or “medically appropriate” in the professional opinion of those charged with the patient’s care.
However, HHS refused to make that clarification and stated some procedures “related to gender transition” may be required even if they were not “strictly identified as medically necessary or appropriate.”
“Thus,” the complaint states, “under the regulation, if a doctor would perform a mastectomy as part of a medically-necessary treatment for breast cancer, it would be illegal for the same doctor to decline to perform a mastectomy for medical transition, even if the doctor believed that removing healthy breast tissue was contrary to the patient’s medical interest.”
As another example, the complaint states, “Because plaintiffs provide hysterectomies to patients diagnosed with uterine cancer, the regulations would simultaneously force them to provide a hysterectomy (and remove an otherwise healthy uterus) for a medical transition, notwithstanding the serious potential harm to the patient.”
The complaint states regulations requiring plaintiffs to perform procedures they believe are not in the best interests of their patients “turns the venerable medical oath to ‘do no harm’ on its head.”
Plaintiffs call the regulation “a radical invasion of the federal bureaucracy into a doctor’s medical judgment.”
By attempting to redefine the word “sex” in the Affordable Care Act, to include “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth,” HHS imposes radical new requirements.
By doing so, HHS has created a massive new liability for thousands of healthcare professionals unless they abandon their medical judgment and perform controversial and even harmful medical transition procedures.
Despite the fact that Congress has repeatedly rejected similar attempts to redefine “sex” through legislation and courts have repeatedly rejected attempts to accomplish the same goal through litigation, HHS, with the single stroke of pen, attempts to do what Congress and the courts will not.
The complaint states the regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to abandon their deeply held religious beliefs.
Under the new rule, states are now required to force all healthcare professionals at state-run facilities to participate in medical transition procedures, including hormone therapy, plastic surgery, hysterectomies, and gender reassignment surgery, and cover those procedures in the state’s health insurance plans, even when a doctor believes such procedures are harmful to the patient.
Under the new rule, failure to comply would subject states to being stripped of billions of dollars in federal healthcare funding – over $42.4 billion a year for Texas alone – serving only to jeopardize the availability of healthcare for the nation’s most vulnerable citizens.
The case is really about a question of statutory interpretation and if HHS can redefine the term “sex” to “thwart decades of settled precedent and impose massive new obligations on healthcare professionals and sovereign states.
Plaintiffs assert the answer is “no” and request the new regulation be set aside as a violation of the Administrative Procedures Act and multiple other federal laws and constitutional provisions.
Because the new regulation applies to any entities or individuals that “operate, offer, or contract for health programs and activities that receive any federal funding from HHS, HHS has estimated the rule will “likely cover almost all licensed physicians because they accept federal financial assistance,” including payments from Medicare and Medicaid.
Others have estimated the rule will apply to over 133,000, which is virtually all hospitals, nursing homes, home health agencies; 445,000 laboratories; 1,200 community health centers; 171 health-related schools; state Medicaid and CHIP programs; state public health agencies; federally facilitated and state-based marketplaces; at least 180 health insurers that market policies through the federally facilitated and state-based marketplaces; and up to 900,000 physicians.
The new rule requires all covered entities to provide programs or activities in accordance with HHS’s expansive definition of the word “sex.”
Plaintiffs ask the court to declare the regulation invalid under the Administrative Procedure Act, invalid under the Religious Freedom Restoration Act, invalid under the First, Fifth and 14th Amendments of the U.S. Constitution, and issue a permanent injunction to prevent HHS from enforcing the challenged regulations against plaintiffs, those acting in concert with plaintiffs, and all states.
