Before we recommend that Catholic institutions refuse all federal funding in an effort to avoid federal rules that conflict with their religious belief, a recent decision from the Eight Circuit provides a different perspective, albeit from a different angle.
In Sisters of Mercy v. Becerra, “a coalition of entities affiliated with the Catholic Church . . . challeng[ed] the implementation of Section 1557 of the Patient Protection and Affordable Care Act (‘ACA’)…(a)ccording to the plaintiffs, “the Department of Health and Human Services (‘HHS’)…interpret Section 1557 and related antidiscrimination laws in a way that compels them to perform and provide insurance coverage for gender transitions.”
Unlike the District Court in Hammons, the Eigth Circuit took pains to discuss the dilemma presented by HHC’s interpretation of Section 1557, and its effect on religious institutions; “Title IX exempts from its restrictions ‘an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.’ 20 U.S.C. § 1681(a)(3)…(i)n 2016, HHS promulgated a ‘final rule implement[ing] Section 1557 of the Affordable Care Act (ACA) (Section 1557)’…(t)he 2016 Rule defined ‘[c]overed entity’ as ‘[a]n entity that operates a health program or activity, any part of which receives Federal financial assistance’…(i)n the 2016 Rule, HHS “concluded that almost all practicing physicians in the United States are reached by Section 1557 because they accept some form of Federal remuneration or reimbursement…”
Significantly, the Eighth Circuit noted that “(w)hile the 2016 Rule provided that the statutory exceptions applicable for discrimination based on race, color, national origin, age, and disability applied…it omitted Title IX’s religious exemption.”
This 2016 interpretation of Section 1557 was continued by HHC in the final rule adopted in 2021.
A group of Catholic organizations realized that under the government’s interpretation of Section 1557, a religious hospital could be forced to participate in sexual reassignment surgery. These organizations then sued to prevent Religious health institutions to be required to “provide, perform, pay for, cover, or facilitate access to health services for gender transition.”
In granting the Sisters of Mercy a permanent injunction against the enforcement of Section 1557 against religious health institutions, the Eighth Circuit held that “the plaintiffs have suffered an injury-in-fact from the government’s interpretation of Section 1557… [p]laintiffs’ refusal to cover gender-transition procedures in their health plans stems from a First Amendment exercise of their religious beliefs… intrusion upon the Catholic Plaintiffs’ exercise of religion is sufficient to show irreparable harm.”
It is important to note that there are several significant differences between the District Court decision in Hammons and the Eighth Circuit decision in Sisters of Mercy – differences which make the Hammons decision dangerous to religious liberty.
Hammons was brought by a private individual against a private institution, while Sisters of Mercy was brought by a group of Catholic health care providers against the government. Government interference in religious freedom is directly proscribed by the US Constitution, which is why the Eighth Circuit prohibited the government from bringing enforcement actions against these Catholic institutions. The back door opened by Hammons, however, would allow a private individual to assert the superiority of their right to non-discrimination over the right of a Catholic hospital to act in accordance with its faith-based guidelines.
In other words, the government cannot force a Catholic hospital to perform sex reassignment surgery – but an individual who wants that surgery can. As noted in Hammons, “(Plaintiff) was not a party to the (Sisters of Mercy) lawsuit…and is not enjoined by the terms of the injunction—only HHS and its agents are…Hammons private right of action is different from a potential enforcement action against St. Joseph by HHS…an injunction against government enforcement is not the same as an injunction against private lawsuits.”
Further, Sisters of Mercy is not based on whether or not a religious health care facility receives federal funding, leaving open the possibility the government could make that argument in a future effort to force Catholic hospitals to participate in gender reassignment surgery. If Hammons is followed by higher courts, then the Sisters of Mercy injunction could be reversed – a decision which would force religious health providers to choose between violating their consciences – or closing their doors.
For the time being, then, the phrase continues in effect; federal funding equals federal rules.
Illustration: Pixabay
Judge John Wilson (ret.) served on the bench in NYC.