Judge: Doctors Have “Religious Freedom” to Refuse to Treat Trans Patients, Women Who’ve Had Abortions
The following is an excerpt from Mark Joseph Stern | January 3, 2017 | Slate.com |
In the waning hours of 2016, U.S. District Judge Reed O’Connor unleashed a bizarre ruling that fundamentally alters the balance between medical treatment and religious freedom in the United States. O’Connor’s decision blocked a critical regulation enacted pursuant to the Affordable Care Act, which forbade doctors from discriminating against transgender patients or women who’ve previously had abortions. Most disturbingly, O’Connor found that such a nondiscrimination rule violated the “religious freedom” of doctors and insurance companies that consider gender transition and abortion to be “evil.” The ruling marks an extreme extension of the dubious logic behind the Supreme Court’s Burwell v. Hobby Lobby decision—and indicates that conservative courts believe the purported right of health care professionals to discriminate against patients trumps patients’ right to sound medical treatment.
Some background: The ACA bars discrimination in health care on the basis of sex, which the Department of Health and Human Services has interpreted to include “gender identity” and “termination of pregnancy.” As many federal courts and agencies have concluded, “sex discrimination” is a somewhat ambiguous concept that can be read to include sex stereotyping and sex-based considerations. Anti-trans discrimination is clearly sex stereotyping, while discrimination against women who terminated a pregnancy is rooted in stereotypes about maternity and female sexuality. HHS’ rule thus filled a standard statutory gap and should have received judicial deference.
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