The Volokh Conspiracy
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After 6 Years of Litigation, Federal Court Permanently Enjoins ACA Abortion/Transgender Mandate
"Plaintiffs have shown success on the merits for its RFRA claim because the current Section 1557 regulatory scheme substantially burdens Christian Plaintiffs' religious exercise in clear violation of RFRA."
In 2016, HHS promulgated a mandate "requiring medical providers to perform and insure abortions and gender-transition procedures." Since then, the case has floated in regulatory limbo over the course of three presidential administrations. Today, the District Court entered a permanent injunction blocking the mandate.
Read the opinion the get the full history, which is too lengthy to summarize. Here is a brief summary of the RFRA argument:
Here, the RFRA violation, the success on the merits, is all but conceded. No party disputes that the current Section 1557 regulatory scheme threatens to burden Christian Plaintiffs' religious exercise in the same way as the 2016 scheme: namely, by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions. Like before, the current scheme continues to fall short of the "more focused" RFRA inquiry. See Franciscan, 414 F. Supp. 3d at 944 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006)). The government asserts no "harm [in] granting specific exemptions" to Christian Plaintiffs. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726–27 (2014). Accordingly, for these reasons and those laid out in greater detail in the Court's October 15, 2019, Order, the Court holds that Christian Plaintiffs have shown success on the merits for its RFRA claim because the current Section 1557 regulatory scheme substantially burdens Christian Plaintiffs' religious exercise in clear violation of RFRA.13 Franciscan, 414 F. Supp. 3d at 941–44.
And in FN 13, the District Court suggests the federal government may have animus towards the plaintiffs:
The lack of briefing on this issue from the government, despite the Fifth Circuit's specific mandate, is concerning and speaks to, at best, the authenticity of HHS and the 2021 Interpretation's generalized promise to "comply with the Religious Freedom Restoration Act . . . and all other legal requirements," see 2021 Interpretation, and, at worst, may suggest some sort of religious animus in the failure to include reasonable religious exemptions in the formation and promulgation of the 2021 Interpretation.
This case will be at the Fifth Circuit soon enough.
Disclosure: The Franciscan Alliance is represented by the Becket Fund for Religious Liberty, my co-counsel in litigation against Governor (for the present moment) Andrew Cuomo.
