The Religious Sisters of Mercy, et al. v. Becerra, Secretary of the Department of Health and Human Services, et al., No. 21-11174 (8th Cir.) Opinion December 9, 2022.

Franciscan Alliance, et al., v. Becerra, Secretary of the Department of Health and Human Services, et al., No. 21-1890 (8th Cir.) Opinion August 26, 2022

The Affordable Care Act (ACA) references and incorporates provisions found in civil rights laws which preclude discrimination on the basis of sex.  Throughout regulatory iterations issued by the Department of Health and Human Services (HHS), and in light of the Supreme Court’s interpretation of the scope of prohibitions in the civil rights laws in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and further in the light of the absence of religious exemptions in some regulatory provisions, plaintiffs have presented objections to federal courts, stating that any requirement that they provide gender transition treatment would unduly burden sincerely held religious beliefs, all in violations of the Religious Freedom Restoration Act (RFRA).

In the most recently decided case, a federal district court awarded summary judgment to plaintiffs, finding that the government’s acts and regulations substantially burdened the Catholic entities’ practice of religion and finding that less restrictive means existed that would allow the government to meet its legislative goals, e.g., through cost assumption or the awarding of subsidies to other providers for the benefit of transgender individuals seeking transition care.

Observation: This litigation encompasses actions by all coordinate branches of the federal government and their agencies.  Additionally, the Department of Health and Human Services and the Equal Employment Opportunity Commission have agreed to join forces to pursue enforcement of laws pertaining to discrimination in transitional health care.  It may be wondered whether both obfuscation through repeated regulation and the joining of forces has been intended to deter challenges to the federal government’s positions.

The federal government has presented multiple jurisdictional challenges to plaintiffs’ complaints, asserting that plaintiffs lack standing and the issues lack ripeness.

The Eighth Circuit has concluded that plaintiffs face a credible threat of enforcement action.  The appellate panel rejected the idea that the matter is not ripe where plaintiffs’ stance concerning transgender services is in clear violation of federal law.  Judicial review is apt where plaintiffs face an “impossible choice:”  plaintiffs must choose to violate federal law or to violate their religious beliefs, an untenable burden.  Slip Op. at 38.

The Eighth Circuit has established an expansive view of what is required to establish irreparable harm.  All that is required is that plaintiffs establish a likely violation of RFRA:  “…irreparable harm accompanies a substantial burden on an individual’s rights to the free exercise of religion under RFRA.”  Slip Op. at 39 (citations omitted).

The appellate panel affirmed the award of permanent injunctive relief to plaintiffs with the exception of certain parties found not to have established associational standing.

The Religious Sisters of Mercy, et al. v. Becerra, et al., No. 21-1890 (8th Cir.) December 9, 2022

Franciscan Alliance, et al. v. Becerra, et al., No. 21-11174 (8th Cir.) August 26, 2022