Two Catholic groups have sued the Obama administration to halt a mandate requiring them to perform abortions and gender identity surgeries or provide insurance that will pay for them.

In a lawsuit filed on December 28, the Catholic Benefits Association (CBA) and the Catholic Diocese of Fargo say Obama administration’s regulations violate their groups’ religious beliefs. They also say the rules express a political agenda, not sound science.

“For decades, Congress and the courts have understood the term ‘sex’ in federal law to mean biological sex – male and female,” Archbishop William Lori, chairman of the Catholic Benefits Association, said in a press statement. “By redefining ‘sex’ to mean both ‘gender identity’ and ‘termination of pregnancy,’ the Obama administration is not only trying to sidestep Congress and impose radical new healthcare mandates on hospitals and employers, it is creating a moral problem for Catholic employers that must be addressed.”

The “Transgender Mandate”

The CBA and the diocese are not the first organizations to file a lawsuit against the mandate. Earlier this year, five states (Kansas, Kentucky, Nebraska, Texas and Wisconsin) and multiple Christian-based groups sued the federal government over the “transgender mandate.”

The mandate is based upon the same section of the Affordable Care Act that the administration insists requires even religious institutions to provide insurance covering contraceptives, sterilization and abortifacients. That mandate has twice gone to the U.S. Supreme Court, where it lost once and was sent back to lower courts.

According to the lawsuit, provided to The Stream, the Department of Health & Human Services’s regulation is an “expansive interpretation” of one section of the Affordable Care Act. The HHS used “a little-remarked-upon section of the ACA that prohibits discrimination ‘on the basis of sex’” to create “a mandate that coerces” Catholic institutions to perform or pay for sex-change surgery and abortions.

The regulation says (see page 31387 in the Federal Register) that “the term ‘on the basis of sex’ includes, but is not limited to, discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.”

HHS justified its interpretation by appeal to Title IX regulations, rulings by the Supreme Court and other courts, and previous decisions by federal agencies. According to the National Center for Transgender Equality, which praised the regulations, this wording “make illegal the practice of categorically excluding all gender transition-related health care from coverage.” It will apply to companies that have a federal contract or receive federal funds, including Catholic hospitals and ministries.

What CBA Wants

In a press call, CBA’s general counsel Martin Nussbaum told The Stream and other outlets that CBA objects to the mandate for many legal and constitutional reasons. In its press release, the CBA claimed the government was violating the Administrative Procedure Act, the Religious Freedom Restoration Act and other federal laws, as well as the First Amendment.

In a follow-up email, Nussbaum told The Stream that the CBA has asked for “injunctive relief,” asking to court to tell the HHS to stop trying to force groups to accept the mandate.  The CBA has also asked for “declaratory relief,” a judgment that the agency has no legal basis to enforce the mandate. The goal is making sure its members can “conduct their ministries and work consistent with their religious beliefs.”

Legal Complexities

CBA CEO Douglas Wilson accused the regulations of harming patients instead of helping them. The mandate is “shoddy science,” he said. “HHS’s own experts agree that these procedures can harm patients with gender dysphoria in ways that are often irreversible.”

Nussbaum told The Stream that the mandate is in effect even after President Barack Obama leaves office on January 20. “The orders, regulations and opinions issued by DOE, HHS and EEOC under this administration continue in force when a new president takes office.

Unfortunately, “Some of these have now morphed into judicial and quasi-judicial decisions that are either binding or persuasive precedents.” The new administration cannot undo those decisions by itself. Such actions from a Trump administration “would be a help,” Nussbaum admitted.

“For many CBA members, [judicial] relief would protect them from potentially fatal enforcement actions,” concluded Nussbaum, who in a press statement also accused the Obama administration of engaging in a “continued assault on religious freedom.”