The Volokh Conspiracy

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The last nationwide injunction of 2016


On New Year's Eve, a federal judge in Texas has put a temporary halt to a federal regulation implementing anti-discrimination provisions of the Affordable Care Act (ACA). Chris Geidner of Buzzfeed reports:

The Health and Human Services (HHS) regulation "forbids discriminating on the basis of 'gender identity' and 'termination of pregnancy'" under Obamacare, as US District Court Judge Reed O'Connor wrote in his opinion halting enforcement of those provisions in the rule.

Explaining the lawsuit, O'Connor wrote, "Plaintiffs claim the Rule's interpretation of sex discrimination pressures doctors to deliver healthcare 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."

The states and nonprofits in the healthcare lawsuit allege that the regulation violates the Administrative Procedure Act (APA)—which sets the rules for federal government rule-making—and the Religious Freedom Restoration Act (RFRA).

The regulation in question implements Section 1557 of the ACA, which prohibits health-care entities that receive federal funding from discriminating on the basis of sex. According to the regulation, this prohibition extends to discrimination based upon "gender identity," "sex stereotyping" and "termination of pregnancy." Among other things, it requires that covered entities treat individuals in accordance with their self-proclaimed gender identity, which is defined as a person's "internal sense of gender, which may be male, female, neither, or a combination of male and female."

The suit in question was filed by several states, including Texas, and some non-profit health-related organizations. Geidner reported on the lawsuit when it was filed earlier this year.

"On pain of significant financial liability, the [Health and Human Services Department's] Regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual's sex-including the sex of children," the complaint in the lawsuit alleges.

The lawsuit also contains claims challenging abortion-relation coverage protections in the same regulation, specifically highlighting the lack of a religious exemption in the regulation or underlying ACA provision. . . .

The HHS regulation, the lawsuit alleges, "not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs."

Unlike some of the Obama administration's other efforts to prohibit discrimination based upon gender identity, the policy here was the product of a notice-and-comment rule making.

The injunction entered against the regulation applies nationwide. Some have criticized nationwide injunctions such as this because it facilitates forum shopping by plaintiffs. There's little doubt that the plaintiff states filed suit where they did because they expected to find a more sympathetic judge than if they had filed elsewhere, such as in Washington, D.C. That's good for plaintiffs who wish to challenge federal policy, but it also gives a single federal district court immense power over national policy.

Shortly before the election, UCLA law professor Samuel Bray posted a draft paper questioning the propriety of nationwide injunctions and proposing limitations on their use. Specifically, Bray suggested the scope of an injunction against the federal government should be no broader than necessary to protect the plaintiffs. SCOTUSBlog discussed Bray's research here. Given the election results, do not be surprised if some who might have been more amenable to Bray's research when it was released develop a new skepticism—and if some of those who championed the use of nationwide injunctions to frustrate the Obama administration policies suddenly question their usefulness.