Goodrich explained, “A hospital that would perform a hysterectomy for a woman with uterine cancer would also have to perform a hysterectomy for a woman who wants to transition to living as a man. If not, [it would be] guilty of sex discrimination and subject to multi-million-dollar penalties.”
The rule itself outlines this very scenario, he said. Hysterectomies are often sought by women transitioning to men to stop the menstrual cycle and prevent any likelihood of pregnancy.
Goodrich explained that the same regulation would apply to medical procedures used in abortions, such as dilation and curettage (D&C), a procedure that can be used to remove the body of an already deceased baby lost in a miscarriage. Under the rule, physicians who perform miscarriage treatment would also be forced to conduct D&Cs on a living baby in the womb, brutally ending his or her life through a painful method of abortion.
Recipients of federal funds who refuse to comply risk being charged with discrimination and face penalties through massive fines, Goodrich said.
Doesn’t the rule include religious exemptions?
HHS officials have stated that the rule will “refine” the process by which medical professionals raise religious freedom objections, but Goodrich says that the actual protection is weak. The Biden administration's proposed rule does not apply any blanket religious exemption to the rule, he said.
Instead, it includes what is called “notification of views regarding application of federal conscience and religious freedom laws,” Goodrich said, putting the burden on individual hospitals and doctors to notify HHS if they believe they are exempt.
That language, in turn, allows HHS to decide whether or not these individuals are religiously protected, Goodrich explained.
Can hospitals and doctors with religious objections be protected from providing procedures at odds with their faith?
As Goodrich explained, the most effective religious protection exists in two already decided court cases and the preliminary injunctions filed by Becket and others on behalf of two organizations: the Christian Medical and Dental Association (CMDA) and Catholic Health Association (CHA).
Two federal courts already have blocked the Biden administration from implementing a similar transgender mandate in 2021. The administration has since issued appeals in the two cases, though Goodrich expects the original rulings to be upheld.
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“HHS is not allowed to enforce the statute to require our clients to perform gender transition or abortions,” Goodrich explained. Becket’s clients include thousands of religious medical professionals across the country who belong to the two associations.
If the regulation is made final, anyone who is a plaintiff in one of the cases already is protected under the permanent injunctions. The rule would apply, however, to doctors and hospitals across the country falling outside this protection.
What about the doctors and hospitals not protected by the courts?
For those who aren’t protected, the options are minimal, Goodrich says.
“Either they’d need to roll the dice and hope that the government doesn't come after them, or they would need to get relief from the Court," Goodrich said. He added that he wouldn’t advise any such religious organization to believe it would be safe to submit a religious exemption notification to HHS in the hopes that the agency would grant one, given how hard the Biden administration already has fought existing court protections.
Should medical providers worry?