Ethical challenges to Obamacare, aka the Affordable Care Act:
And, forging ahead, Obamacare may be forcing doctors to perform gender transition procedures.
Last year the Administration’s Department of Health and Human Services (HHS) issued an interpretation of Obamacare’s Section 1557. This forbade discrimination on the basis of “sex”. The interpretation, published in the Federal Register of May 18, now forbids discrimination on the basis of “gender identity” as well.
sex stereotypes can include the expectation that individuals consistently identify with only one of two genders (male or female), and that they act in conformity with the gender-related expressions stereotypically associated with that gender.
Sex stereotypes can also include a belief that gender can only be binary and thus that individuals cannot have a gender identity other than male or female … an individual’s gender identity involves the interrelationship between an individual’s biology, gender, internal sense of self and gender expression related to that perception; thus, the gender identity spectrum includes an array of possible gender identities beyond male and female.
As a result, say the plaintiffs in a case known as Franciscan Alliance, Inc., v. Burwell, doctors could be compelled to perform transgender surgeries on children and adults, even if doing so conflicts with their professional judgement that the operation would be harmful or not in the patient’s best interests. The new regulations clearly state:
A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.
The case is being handled by the Becket Fund for Religious Liberty. It says that the government does not even require Medicare and Medicaid to cover these same gender transition procedures because HHS found that the risks were high and that the benefits were unclear. An extremely detailed study of the supposed benefits of sex-change operations by the Centers for Medicare & Medicaid Services (CMS) in June concluded that the case remained unproven. The CMS discovered that very little research had been done into the health benefits of sex reassignment surgery, but its staff analysed 33 studies published between 1979 and 2015. Its verdict ought to be required reading for every politician and journalist:
Based on a thorough review of the clinical evidence available at this time, there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria. There were conflicting (inconsistent) study results – of the best designed studies, some reported benefits while others reported harms. The quality and strength of evidence were low due to the mostly observational study designs with no comparison groups, potential confounding and small sample sizes.
It’s astonishing that this is not being cited by the media.
Nonetheless, after the determination by the HHS, a doctor citing this evidence in an individual case would be violating Obamacare’s new transgender mandate and could face lawsuits or loss of his or her job.
“No doctor should be forced to perform a procedure that he or she believes will harm a child,” said Lori Windham, of the Becket Fund. “Decisions on a child’s medical treatment should be between families and their doctors, not dictated by politicians and government bureaucrats.”
A new Becket Fund website provides leading research on this issue, including guidance the government itself relies on demonstrating that up to 94 percent of children with gender dysphoria (77 to 94 percent in one set of studies and 73 to 88 percent in another) will grow out of their dysphoria naturally and will not need surgery or lifelong hormone regimens. Studies also show that there are numerous negative effects when children undergo hormone regimens, such as increased risk of heart disease, type 2 diabetes, and breast, ovarian, and prostate cancer.
“The administration is trying to impose its own trendy ideology across the land — in defiance of the law, science and democratic norms. Every friend of liberty should be fighting back.,” said an editorial in the New York Post.
Unsurprisingly the lawsuit has been attacked. Perhaps the most colourful language was used inWonkette: "Look, a lawsuit to give religious wingnut doctors freedom to deny medical care totransgender folk, hooray!" The progressive site Think Progress ominously opined that:
this lawsuit sets a terrifying precedent for transgender people. If these cases reach the Supreme Court and it follows the same reasoning it used in Hobby Lobby?—?perhaps less likely without Justice Antonin Scalia, but still possible— it would create a society in which transgender people could legally be denied the necessary foundations of life simply because of their identities.
Transgender activists believe that fears of conscience violations are unfounded. "The example unfortunately used by individuals who oppose this is that this is going to force doctors to provide transition surgeries to children [but] this doesn't take away a doctor's ability to make informed decisions in the best interest of their patients," said Sarah Warbelow, legal director for the Human Rights Campaign. "What the doctor can't do is say, 'I won't treat you because you're transgender.'"
The plaintiffs in Franciscan Alliance, Inc., v. Burwell are Franciscan Alliance, a religious hospital network sponsored by the Sisters of St. Francis of Perpetual Adoration, and the Christian Medical & Dental Associations, joined by the states of Texas, Kansas, Kentucky, Nebraska, and Wisconsin.
Michael Cook is editor of MercatorNet. This article was republished with permission from MercatorNet.
Michael Cook likes bad puns, bushwalking and black coffee. He did a B.A. at Harvard University in the U.S. where it was good for networking, but moved to Sydney where it wasn’t. He also did a Ph.D. on an obscure corner of Australian literature. Currently he is the editor of BioEdge, a newsletter about bioethics, and MercatorNet. He also writes a bioethics column for Australasian Science.