Stanley Carlson-Thies, January 19, 2017

On the last day of 2016, a federal judge in Texas issued a preliminary injunction telling the federal government it may not enforce a new regulation that would have required nearly every health care provider and insurer, whatever their religious or moral convictions, to perform, or provide insurance coverage for, transgender transition services and elective abortions.

Four striking aspects of the court decision:

• Sex is sex. The court reminded the federal Department of Health and Human Services, the issuer of the regulations, that when Congress, as in the Affordable Care Act (Obamacare), prohibits “sex” discrimination, that’s what it is prohibiting, not also discrimination on the basis of “gender identity” and “termination of pregnancy.” Congress can expand nondiscrimination requirements, but the regulators cannot just do the same thing on their own.

• The government itself has doubts. There can hardly be a compelling federal interest in compelling every health care provider and insurer that receives any kind of federal money (e.g., via serving Medicare patients) to perform or insure transgender transition surgery and other services when, as the judge tartly observes, “the government’s own health insurance programs, Medicare and Medicaid, do not mandate coverage for transition surgeries; the military’s health insurance program, TRICARE, specifically excludes coverage for transition surgeries; and the government’s own medical experts reported ‘conflicting’ study results of transition procedures—‘some reported benefits while others reported harms.’”

• Medical judgment is not nothing. Part of the judge’s reasoning in stopping the regulation is that it would essentially prohibit a doctor from refusing to perform certain procedures even though the doctor is sure that the procedure will harm, rather than help, the patient—and despite the fact that the federal government itself is doubtful that transition procedures are always positive—see the point just above.

• Pluralism is a solution. Say that the government does have a compelling interest in ensuring that every person who seeks a transgender procedure or an elective abortion will receive the procedure. Still, the judge said, that does not permit the government simply to require every doctor and health plan to facilitate the procedures. That’s because there are other ways than such universal compulsion that the government can utilize. The government might, for instance, pay for such procedures if some health insurer has a reason of conscience not to provide the coverage. And the government can steer a person desiring transgender services or an abortion to a different doctor or hospital.

We are a diverse country. Some health plans are conscience-bound not to provide coverage for some procedures while others are glad to cover those same procedures. Some doctors are barred by faith or conscience not to perform particular procedures while others are motivated by their convictions exactly to perform those procedures.

Given all of alternatives available to transgender people and women seeking abortions, the judge wrote, there is no evidence that exempting objecting health plans and doctors “would frustrate the goal of ensuring ‘nondiscriminatory access to health care and health coverage.” Where there are many alternatives, curtailing discrimination does not require coercing into action those with religious or moral objections to participation.