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to Section One | to Arts & Entertainment
posted Friday, January 6, 2017 - Volume 45 Issue 01
Federal judge blocks Obamacare nondiscrimination protections

Trans healthcare and reproductive choice at stake
Section One
ALL STORIES
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Federal judge blocks Obamacare nondiscrimination protections

Trans healthcare and reproductive choice at stake

by Mike Andrew - SGN Staff Writer

A federal judge in Texas has blocked enforcement of the Affordable Care Act (ACA, or Obamacare) nondiscrimination provisions that protect Transgender health care and reproductive choice.

Only 24 hours before the regulations would go into effect, on December 31, US District Judge Reed O'Connor issued an injunction preventing the administration from carrying them out.

O'Connor ruled in a lawsuit brought by Texas and several other states under the Religious Freedom Restoration Act (RFRA) that challenged the Obama administration's interpretation of the ACA's ban on discrimination based on sex.

At stake are the administrative rules developed to implement Section 1557 of the ACA, the part that prohibits discrimination in provision of health care services.

Like other executive departments, Health and Human Services (HHS) issued rules saying that the ban on sex discrimination also 'forbids discriminating on the basis of 'gender identity' and 'termination of pregnancy' under Obamacare.

Texas and the other parties to the lawsuit alleged that the regulation violates the RFRA and the Administrative Procedure Act (APA), which defines the process for federal government rule-making.

Texas Attorney General Ken Paxton argued that the administration's rules constituted a 'striking example of federal overreach' and warned that the provisions 'would force many doctors, hospitals, and other health care providers in Texas to participate in sex-reassignment surgeries and treatments, even if it violates their best medical judgment or their religious beliefs.'

O'Connor agreed with Paxton's assertions.

'Plaintiffs claim the Rule's interpretation of sex discrimination pressures doctors to deliver health care in a manner that violates their religious freedom and thwarts their independent medical judgment and will require burdensome changes to their health insurance plans on January 1, 2017,' O'Connor wrote in his opinion.

O'Connor found that the plaintiffs had standing to bring the lawsuit despite the fact that they, themselves, do not provide health care services, because they 'have presented concrete evidence to support their fears that they will be subject to enforcement under the [Obama administration's] Rule.'

O'Connor found that 'numerous' other options were available to the government for 'expand[ing] access to transition and abortion procedures,' and therefore the administration's rules are not the 'least restrictive means' of advancing that interest - as required by RFRA.

O'Connor also questioned whether the Obama administration even showed that it 'advances a compelling interest,' as required by RFRA.

Finally, because the rule affects 'almost all licensed physicians' and one of the nonprofit groups - the Christian Medical & Dental Associations - has members across the country, O'Connor found that a nationwide injunction halting enforcement of the Transgender- and abortion-related provisions in the rule was appropriate.

White House response
In a December 31 statement the White House defended the administration's policies.

'Today's decision is a setback, but hopefully a temporary one, since all Americans - regardless of their sex, gender identity, or sexual orientation - should have access to quality, affordable health care free from discrimination,' White House spokesperson Katie Hill told BuzzFeed News.

The next steps from the administration could include appealing the injunction or asking O'Connor to limit his order to the plaintiffs in the case, although the administration now has less than three weeks left in office.

HHS spokesperson Marjorie Connolly, in a statement to BuzzFeed News, did not provide any specific next steps to protect Transgender or reproductive care.

'We are disappointed by the court's decision to preliminarily enjoin certain important protections against unlawful sex discrimination in our health care system,' she said.

'Section 1557 of the Affordable Care Act is critical to ensuring that individuals, including some of our most vulnerable populations, do not suffer discrimination in the health care and health coverage they receive.'

Connolly did insist that the reminder of the ACA's nondiscrimination protections remain in effect and would be enforced.

'We will continue to enforce the law - including its important protections against discrimination on the basis of race, color, national origin, age, or disability and its provisions aimed at enhancing language assistance for people with limited English proficiency, as well as other sex discrimination provisions - to the full extent consistent with the court's order,' she said.

Judge also blocked restroom access for Trans students
O'Connor is the same federal judge who blocked enforcement of the Obama administration's guidelines on restroom access for Transgender students.

In August he issued another nationwide injunction striking down Education Department guidance stating that the Title IX ban on sex discrimination also protected gender identity. O'Connor's ruling came in a lawsuit also led by Texas.

O'Connor held in the Title IX case that the administration exceeded its constitutional authority by making rules not contemplated by the underlying legislation.

In March of 2015, he also sought to block Family and Medical Leave Act (FMLA) rights for legally married same-sex couples despite the Supreme Court's decision in United States v. Windsor.

In that case, O'Connor argued that the Supreme Court decision did not invalidate state laws against same-sex marriage.

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