Joe Biden’s Secretary of the Department of Health and Human Services, Xavier Becerra, was in the news again in recent days, after a relatively quiet time in office after his confirmation by the Senate. He was again taking up a hobby for which he was famous in his former role as Attorney General of California: bullying Catholic nuns.
In California, he spent an undue amount of time and effort hounding the Little Sisters of the Poor because of their exemption from the “HHS Mandate.” In spite of having been vindicated twice by the Supreme Court — in 2016 and in 2020 — the Little Sisters still found themselves the target of Becerra’s attentions. That prompted a famous exchange during Becerra’s confirmation hearings, when Sen. Ben Sasse asked him bluntly, “Why did you bully nuns?”
Becerra cagily evaded that question at his hearing, but perhaps the honest answer would’ve been that it’s just the sort of thing he enjoys doing. Because now, from his new office in DC, he’s targeting yet another group of nuns, on the basis of yet another “HHS mandate.”
Becerra will be leading the Biden administration’s challenge of a federal court decision that granted permanent injunctive relief to the Religious Sisters of Mercy and their co-plaintiffs, including the Catholic Benefits Association. The case had to do with “gender transition” procedures the HHS mandates be covered under the Affordable Care Act.
The government claimed that the Sisters and other Catholic healthcare and insurance providers could not “discriminate” on the basis of “sex” in providing certain medical services. This sounds reasonable, but one must read between the lines to perceive what sort of medical services and discrimination the government was talking about.
Essentially, they maintained that if Catholic doctors performed, and Catholic insurers paid for, a treatment, they have to perform and pay for it for transgendered people. If they performed a double mastectomy as part of a treatment for cancer, denying a double mastectomy to someone who wanted one as part of a “gender transition” process is “sex-based discrimination.” The federal court found that the Sisters and their co-plaintiffs could be exempt on the basis of a First Amendment claim and the “Religious Freedom Restoration Act” (RFRA).
Many legal experts with a focus in religious freedom cases predict that the sisters will ultimately prevail. This fact is hardly worth celebrating. The very fact of an exemption being applied reinforces the legitimacy of the underlying mandate, applied generally. However, there’s nothing legitimate about it.
In their pleading to the court, the Religious Sisters of Mercy et al. did make this point. They argued, in effect, that there is a world of difference between removing a diseased organ in order to treat an illness and removing a healthy organ in order to sustain a delusion.
Yet this argument was not the basis on which they won their case. The ruling relied upon their claim of a sincerely held religious belief that entitled them to exemption from the mandate.
The real crux of the issue is the mandate itself, which unfortunately the former federal ruling does not touch. The mandate presents the whole gamut of “gender affirming” pharmaceutical and surgical interventions as perfectly reasonable “health care.” However, this is a perspective driven purely by ideology, with science and plain common sense left by the wayside.
The rise of “gender affirming” care as the new standard in recent years is simply a trend, as arbitrary and inscrutable as any trend on Twitter or TikTok. Try as they may (and they have tried very hard indeed), transgender activists have been unable to produce a compelling body of data, let alone a consensus-making one, to show that these sorts of interventions help those afflicted by sexual identity confusion.
Comorbidities like suicidality and depression seem to persist among transitioners at alarming rates. A growing number are “de-transitioners” and others have come to express regret about their surgeries and chemical alterations.
Doctors should not need a strong First Amendment claim, centered on deeply held religious beliefs, to be free from a mandate to provide such services. The Hippocratic Oath, or knowledge of what science tells us about gender dysphoria, should leave a doctor at liberty to refuse to cut off perfectly working body parts in order to ameliorate the patient’s mental discomfort.
Atheist or agnostic doctors should be just as free as their religious counterparts to take such a position. They will appeal to the science. They may appeal to a humanistic understanding of the human person. They have good reasons to say no. Yet even if the Religious Sisters of Mercy prevail at the Supreme Court, they will not benefit from the decision.
The problem is that the exception and the norm are reversed from where they ought to be. Behind this there is a great irony. Xavier Becerra and his allies act as if the only ground for objecting to a “gender affirming” paradigm is a fideist (and probably unreasonable) one. The reason can’t be science, or a different view of the human person, or common sense. It must be religious — a subjective, private view that society has to indulge because of the First Amendment.
The real fideists, however, are those who put their trust in that paradigm. They are the ones following mere fads, insisting on their own subjective, private views. They’re th eones overlooking a conspicuous absence of evidence and ignoring persistent inconvenient facts.
The application of the First Amendment to this matter should not be about the Religious Sisters of Mercy and their right to free exercise. It should be about how the government, in following fad of gender ideology, has sought to establish a secular religion and impose it on America.
Joe Grabowski is the executive director of the International Organization for the Family and an independent scholar in family, marriage, and life issues. His previous article was When Catholics Leave Over Same-Sex Marriage.
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