Law & the Courts

HHS Denies Conscience Freedom for Physicians

President Joe Biden deliver remarks to commemorate LGBTQ+ Pride Month at the White House, June 25, 2021. (Jonathan Ernst/Reuters)
Biden’s mandate for doctors to supply gender transitions doesn’t pass muster.

We’ve all read about how President Biden recently ordered his Health and Human Services Department to issue a national eviction-moratorium mandate, even though “the bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.” And indeed, the Supreme Court has just struck it down.

What can you do when the president brazenly admits that he is trampling on constitutionally protected freedoms?

But the eviction moratorium is not the only mandate from this president that far exceeds his authority. It’s not even the only illegal mandate from President Biden’s HHS.

On August 26, two organizations of medical doctors and an obstetrician/gynecologist filed a lawsuit in federal court over a mandate from President Biden and HHS that will force doctors to perform gender-transition procedures, even on children.

The administration’s excuse for this mandate is Obamacare, but that 1,000-page statute does not include a gender-identity-procedure mandate. Instead, it simply prohibits sex discrimination, as Congress understood that term when it enacted civil-rights laws half a century ago.

Yet on January 20, President Biden ordered his federal agencies to go far beyond the law and reinterpret sex discrimination to include “gender identity” discrimination. President Obama had done the same for Obamacare and had admitted he was requiring doctors to give hormones to and perform gender-transition surgeries on patients who demand them. In 2016 a federal court blocked President Obama’s version of the mandate, and under his successor, Donald Trump, HHS said it agreed with the decision. But courts in New York and D.C. issued orders seeming to restore the Obama rule, and in May 2021, with Trump gone, the Biden administration told the world it will force doctors to perform these procedures anyway — and will even force them to deny biological reality in their speech.

Under this mandate, doctors must violate their medical judgment. If they think it will be harmful to patients, including children, to put them on dangerous hormones and experimental “transition” interventions, too bad. There is likely no profession where the truth about human biology is more essential than biology itself. Doctors apply biology to cure and treat patients, so ordering them to pretend men are women and women are men isn’t just absurd; it puts lives at risk.

Doctors who take their oath seriously are not taking this mandate lying down. With representation by Alliance Defending Freedom, the doctors’ lawsuit points out that HHS has no legal authority to impose mandates of the type being challenged. Congress has passed other laws saying that courts can intervene in — and block — that kind of government overreach.

The Biden administration has violated two main laws here. First, both the First Amendment and religious-freedom statutes passed by Congress are designed to put the brakes on the federal government when its bureaucrats issue illegal mandates that coerce religious believers, in their ministries or in their businesses.

There is also a less well-known law with the boring title of the Administrative Procedure Act. Its impact is anything but boring, however. In passing it, Congress made clear that when unelected officials pretend to be lawmakers and try to enforce their own imagined version of a law, citizens can sue to stop them. In many places, Obamacare follows the common-sense view that men’s and women’s health needs are different, and both should be protected. Nowhere does Obamacare prohibit “gender identity discrimination.” The Biden administration, like the Obama administration before it, made up that rule itself.

The U.S. Supreme Court has become increasingly skeptical of federal agencies’ coloring outside the lines, and lower courts are following suit. The Biden administration has already lost cases on immigration and energy as well as this gender-identity mandate, which the administration insists on pushing anyway.

So what can you do when federal officials invent rules, knowing they have no legal authority? At least until the next presidential election comes around, you head to court.


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