In the midst of often baffling and perplexing policies and mandates coming out of our nation’s capital, this post outlines good news for current and future members of CMDA. With conscience freedoms increasingly at risk from government infringement, we want to emphasize a recent victory in court. This victory affords you crucial protections of your conscience freedoms as a healthcare professional allowing you to practice from your sincerely held beliefs.

A little history as we get started. In May 2016, the U.S. Department of Health and Human Services (HHS) issued a rule under Section 1557, the non-discrimination clause of the Affordable Care Act. This mandate greatly expanded the definition of discrimination on the “basis of sex” to include gender identity and abortion. This change would have required healthcare professionals to perform gender transition surgeries AND abortions regardless of personally held religious beliefs and in conflict with the spirit of the Hippocratic Oath.  The rule also required insurance to cover these controversial services. This directive was an egregious violation of a healthcare professional’s medical judgment, and it is an example of government overreach that interferes with the doctor/patient relationship.

To push back on this flagrant encroachment, CMDA filed a lawsuit in the Northern District of Texas shortly after this new rule was released, with Becket Law representing CMDA and two religious hospitals providing care in eight states. A series of court rulings were then subsequently issued:

• December 2016 — The court issued a preliminary ruling that the federal government had exceeded its authority with this rule change, which also likely violated religious freedom.
• October 2019 — The court affirmed the previous ruling that healthcare professionals could not be compelled to perform procedures that violated their religious beliefs, but the court failed to issue a permanent order preventing the federal government from enforcing this mandate on faith-based facilities and healthcare professionals. Becket then appealed that decision in order to obtain a permanent injunction against HHS enforcing this new rule against the plaintiffs, including the membership of CMDA.
• August 2021 — The Federal District Court granted the permanent injunction, ruling that healthcare professionals could not be compelled to perform procedures attempting to change gender, as it would mean violating their conscience and acting against their personal medical judgment. This permanent injunction means that HHS is currently barred from imposing these requirements on all current and future members of CMDA.
• November 2021 — The government and the ACLU appealed this decision to the U.S. Court of Appeals for the Fifth Circuit. This decision is currently pending while the permanent injunction remains in place, and we are hopeful for a positive outcome later this year.

Please see more detailed information on this case on Becket’s website.

It is important for CMDA members to be aware that this permanent injunction only protects them from action originating from HHS. It does not protect them from similar challenges to their conscience freedoms that may originate from either a university or a healthcare institution that is their direct employer. State level legislation is necessary to achieve conscience protections at this level. Fortunately, CMDA is working closely with Alliance Defending Freedom (ADF) to pass model legislation in several states around the country that will provide complete protection of conscience freedoms for healthcare professionals. Your engagement with lawmakers will be key to help get that legislation passed in your state.

As mentioned in a previous blog, earlier this year HHS announced they were proposing to amend the 2020 Final Rule implementing Section 1557, the non-discrimination clause of the Affordable Care Act. HHS released the new proposed rule on August 4, 2022. The federal government is now accepting comments to this rule until close of business on Monday, October 3, 2022. We strongly encourage CMDA members and others concerned about healthcare conscience freedoms to submit a comment to voice their opinion to this government interference in the doctor/patience relationship. Details of the proposed rule and instructions on how to submit a comment are located here.

To reiterate, as a member of CMDA, you are afforded protection of your conscience freedoms from this new rule—and future iterations—with the positive outcome of this lawsuit. HHS or any of its divisions/agencies cannot enforce the Section 1557 mandate over you or anyone who works with you. HHS cannot compel you to violate your personal religious beliefs and professional judgment by forcing you to perform transgender procedures or abortions. This permanent injunction will protect every current and future member of CMDA from overreach of the federal government. Additional information on the permanent injunction for CMDA is available at www.cmda.org/transgendermandate.

In conclusion, we must remind ourselves that we do not merely wage an earthly battle but a spiritual one as we minister to patients and to one another. “For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms” (Ephesians 6:12, NIV). As believers, our aim is to remain assured that God will bring us through. As it says in 1 Corinthians, “But thanks be to God! He gives us the victory through our Lord Jesus Christ” (1 Corinthians 15:57, NIV).