HHS proposes healthcare rule on abortion and transgender services

By Tom Tracy, Catholic News Service

In early April, the leadership of the Catholic Benefits Association predicted that the US Department of Health and Human Services would soon announce regulatory proposals that could pose an existential threat to religious employers, including Catholic hospitals.

On July 25, HHS finally published this proposal in a 308-page document.

Last year, the discovery of a 74-page legal memorandum attached to a court filing from a consortium of 30 sexual rights groups revealed that HHS had promised to revise its mandates on coverage and performance of the health regimen to include surgical abortion, cross-sex hormones, gender transition surgeries, gender-affirming cosmetic surgeries and voice modification – as well as a host of extensive services dealing with fertility treatments, contraception, abortions and sterilizations.

“The memo prepared by the Leadership Conference provides the best prediction of what the new regulations will say,” said attorney Martin Nussbaum of Nussbaum Speir Gleason in Colorado Springs, Colorado, a law firm that advises the Catholic Benefits Association.

The association provides legal advice and litigation in defense of First Amendment rights for its members of more than 1,000 Catholic employers, including 60 dioceses and archdioceses, numerous religious orders, colleges and universities, hospitals and other government departments.

“We don’t know for sure what the settlement will say, but there’s good reason to believe it will be quite similar to the memo signed by 30 sexual rights activist groups, including Planned Parenthood,” Nussbaum told the Catholic News Service in an April. interview.

The leadership conference he referred to is a Washington-based coalition of some 200 member organizations advocating for the civil and human rights of women, the LGBTQ community, immigrants and workers, and the disability community.

Nussbaum and others in interviews with CNS in April said they expected the HHS proposal to have a big impact on costs and compliance for all U.S. employers and would ban religious exemptions.

As published, it would compel doctors to perform these procedures, including on minors, “despite their sincere and consistent medical objections,” a Heritage Foundation policy expert said in a July 26 statement.

The proposed HHS regulations would apply to the implementation of a provision of the Affordable Care Act that includes a prohibition on discrimination based on sex. The proposal will likely apply to all health care providers, clinics, nursing homes, hospitals, group health insurers and third-party administrators of self-funded plans.

“And if the new regulation applies to all of these groups, it will effectively apply to all employers with a health plan,” Nussbaum told CNS. “The proposed settlement would also apply to all contractors in the previous groups, including my law firm. For Catholic hospital chains, it is hard to imagine how large this group is.

Last year, a number of Catholic healthcare organizations filed a lawsuit challenging the Biden administration’s so-called ‘transgender mandate’ requiring doctors and hospitals to perform gender transitioning procedures. on any patient despite any moral or medical objection from the physician or healthcare facility.

A federal court blocked the warrant last August, granting the plaintiffs’ request for a permanent injunction. He permanently prohibited HHS, HHS Secretary Xavier Becerra, and all HHS-related divisions, agencies, and employees from “interpreting or applying Section 1557 of the Affordable Care Act,” which became law in 2016.

Section 1557 prohibits discrimination based on race, color, national origin, age, disability, or sex – including pregnancy, sexual orientation, and gender identity – in programs or health activities covered.

In 2020, the Trump administration implemented a final rule that eliminated the blanket ban on discrimination based on gender identity and also passed abortion and religious freedom exemptions for healthcare providers. health. But the courts have blocked this rule change.

In 2021, shortly after his inauguration, President Joe Biden issued an executive order declaring that his administration would implement the 2020 United States Supreme Court decision in Bostock v. Clayton County in all areas including the ACA.

In a 6 to 3 decision, the court held that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination “on grounds of sex”, as prohibited by Title VII of the civil rights of 1964.

Once HHS’s proposed regulations are published in the Federal Register, a public comment period will begin. HHS said that period will be 60 days after publication. As of July 27, the HHS proposal has yet to be posted on https://www.federalregister.gov.

“The pending (HHS) settlement poses an existential threat to Catholic health care, as penalties for non-compliance will likely include private enforcement, class action lawsuits, ‘qui tam’ actions, that is- that is, an individual can sue as if he or she were the United States itself,” Nussbaum told CNS in April. “Penalties can also include loss of Medicare funding and Medicaid and even jail time for non-compliant healthcare executives.”

“Such penalties can shut down any hospital network,” Nussbaum said, adding that such an expansion of ACA-related services will cost employers millions and millions of dollars in increased health insurance costs.

Last year, the Colorado Association of Health Plans, an industry trade group, predicted a 1.5% rate hike in response to the Governor of Colorado’s announcement to cover gender-consistent cosmetic surgery – apparently becoming the first state to try to require insurers to provide transition-related care for transgender people as an essential benefit.

“Such performance mandates will hurt health care in the United States as a whole, given that Catholic hospitals provide about one-sixth of hospital beds nationwide,” Nussbaum noted.

Other faith groups and employers, including evangelical and Christian colleges and health care networks, are expected to challenge a sweeping expansion of mandatory abortion, contraception and gender transition services after the comment period on the proposed HHS rule.

Doug Wilson, CEO of the Colorado-based Catholic Benefits Association, said he plans to discuss the expected HHS announcement with leaders of other Catholic healthcare associations united under a new umbrella organization called Catholic Healthcare. Leadership Alliance.

“My main focus right now is to prepare for the HHS decision,” Wilson told CNS. “Until November, when our attorneys discovered it in a 74-page court filing, no one knew about it. We very quickly shared the information with the USCCB (United States Conference of Catholic Bishops) and many more as well as with our community of members.”

“The general public has almost no awareness of what can happen,” Wilson added.

“It is written to end Catholic health care. The requirements go so far beyond Catholic teaching that Catholic employers of all kinds would be forced to comply or close,” Wilson said.

The HHS advance rules represent a well-designed and well-thought-out way to remove religion from health care, according to Wilson. These rules, he said, would touch on the full range of reproductive health care, from surgical abortion and, eventually, mail-order chemical abortion to services related to sexual orientation and identity. of gender.

“The Leadership Conference demands are very clear. There must be no religious exemption to this,” he said. “At the end of the day, we are preparing for what we anticipate will be an important trial. I don’t think the administration will make any significant changes or that the public comment period will have enough (or) much of an effect.

“Their view of what’s good for the country is certainly different from ours,” Wilson said.

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Read the HHS announcement about its regulatory proposal.

Read the full text of the proposed settlement.