Round One goes to the Franciscans [see update], but it’s going to be a long fight. As the Obama administration proved with the Little Sisters of the Poor, progressives will go the distance to impose mandates on religious organizations. A federal judge issued a permanent injunction yesterday that restores conscience protections for health-care workers and facilities, including the right to refuse abortions and sex-change operations:

A federal court has blocked President Joe Biden’s mandate that would require doctors to perform transgender surgeries against their consciences.

Judge Reed O’Connor of the United States District Court for the Northern District of Texas, Wichita Falls Division, granted “a permanent injunction” to the Christian plaintiffs “to be exempt from the government’s requirement to perform abortions and gender-transition procedures.” …

The ruling permanently enjoins Health and Human Services Secretary Xavier Becerra “from interpreting or enforcing” the law “in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions, including by denying Federal financial assistance because of their failure to perform or provide insurance coverage for such procedures or by otherwise pursuing, charging, or assessing any penalties, fines, assessments, investigations, or other enforcement actions.”

O’Connor’s decision rests on a number of points, not the least of which is his rejection of the government argument that the case is moot. The Trump administration changed the HHS rule in 2019 governing these issues to protect religious liberty. The Biden administration and HHS Secretary Xavier Becerra are in the process of changing the rule again, which O’Connor notes hardly makes this issue moot. Indeed, O’Connor points out that HHS has already reinterpreted Section 1557(a) to expand its enforcement to include the objectionable procedures:

Even assuming the HHS Secretary has the power to reimagine Section 1557(a)—or the 2020 Rule for that matter—by administrative fiat,7 the 2021 Interpretation, while succinct, did little for clarity. According to the 2021 Interpretation, incorporating all of HHS’s compliance measures, Section 1557(a) should be interpreted to read, in relevant part, as follows … [quotes interpretation]

If this sounds entirely unworkable or, at worst, materially indistinguishable from the 2016 Rule, you’re not alone. Compare the 2020 Rule and 2021 Interpretation, 86 Fed. Reg. 27,984, 27,984 (May 25, 2021); with the 2016 Rule, 81 Fed. Reg. 31,376, 31,466, 31,467 (May 18, 2016) (defining “sex” discrimination under Section 1557 to include discrimination based on “gender identity,” and promising “[i]nsofar as the application of any requirement under this part would violate applicable Federal statutory protections for religious freedom and conscience, such application shall not be required.”). The 2021 Interpretation effectuates a legal Penrose staircase to enforce Section 1557 in the near identical way as, if not an enhanced version of, how the 2016 Rule dictated.

In other words, the government argument on mootness is at the very least disingenuous. O’Connor then turns to the Religious Freedom Restoration Act (RFRA) claim by the plaintiffs, and finds that neither side disputes the damage that will take place under HHS enforcement of this interpretation. The remaining question is whether the government has narrowly tailored its rule for only the smallest infringement possible, and at that O’Connor scoffs. Furthermore, he notes that a smaller-scale exemption led to another RFRA violation in an earlier case:

Here, Christian Plaintiffs contend that violation of their statutory rights under RFRA is an irreparable harm. The Court agrees and concludes that enforcement of the 2021 Interpretation forces Christian Plaintiffs to face civil penalties or to perform gender-transition procedures and abortions contrary to their religious beliefs—a quintessential irreparable injury. See DeOtte, 393 F. Supp. 3d at 512 (“Plaintiffs rights will be violated day after day.”); see also 45 C.F.R. §§ 86.4, 92.4 (“false” certification claims trigger false-claims liability, “exposing [them] to civil penalties,” treble damages, and the possibility of “up to five years’ imprisonment.”); Sisters of Mercy, 2021 WL 191009, at *2 n.1. When the RFRA violation is clear and the threat of irreparable harm is present, a permanent injunction exempting Christian Plaintiffs from that religion-burdening conduct is the appropriate relief. See ODonnell v. Harris Cnty., 892 F.3d 147, 163 (5th Cir. 2018) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)) (“When crafting an injunction, district courts are guided by the Supreme Court’s instruction that ‘the scope of injunctive relief is dictated by the extent of the violation established.’”). Because the Court finds the permanent-injunction factors weigh in favor of granting an injunction in this instant, the Court concludes that Christian Plaintiffs are “entitled to an exemption” from HHS’s religion-burdening conduct. Hobby Lobby, 573 U.S. at 694–95; see 42 U.S.C. § 2000bb-1(c).

The Court need not speculate whether another lesser remedy would be adequate in providing Christian Plaintiffs’ relief because a vacatur was already insufficient as it led to an identical RFRA violation. see Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010) (“If a less drastic remedy . . . [i]s sufficient to redress [plaintiff’s] injury, no recourse to the additional and extraordinary relief of an injunction [i]s warranted.”). The changing landscape of Section 1557’s regulatory scheme left the Court’s 2019 order wholly inadequate compared to the relief the Court sought to provide. Franciscan, 414 F. Supp. 3d at 946; contra Monsanto, 561 U.S. 139, 165–66 (finding a permanent injunction overbroad where the court’s vacatur based on an APA claim rendered the added injunctive relief superfluous—lacking “any meaningful practical effect independent of the vacatur.”). The Court finds no reason to depart from its charge to Christian Plaintiffs two years ago “inviting [them] to return if further relief independent of vacatur is later warranted.” Franciscan, 414 F. Supp. 3d at 946. Thus, the Court concludes that the permanent injunctive relief requested is the adequate remedy at this juncture.

The entire federal judiciary might not have tired of the games HHS has played with religious individuals and groups, but O’Connor certainly has.

The Becket Fund, which represented the plaintiffs, are understandably pleased with this complete win … for the moment:

Today’s ruling protects patients, aligns with current medical research, and ensures doctors aren’t forced to violate their religious beliefs and medical judgment–a victory for common-sense, conscience, and sound medicine. fin/

— Luke Goodrich (@LukeWGoodrich) August 9, 2021

Of course, we can expect HHS to appeal this case to the Fifth Circuit, but that entails some risks as well. It’s unlikely that the appellate court will revisit the findings of fact in the case. They could rethink the mootness and ripeness issues, and the latter might still be a tricky point since HHS has not yet enforced its new interpretation. However, the Fifth Circuit hasn’t proven all that sympathetic to HHS overreach in the past, and a loss there would create a multi-state precedent based on O’Connor’s interpretation, at least in part. And Becket would immediately appeal any loss to the Supreme Court, where HHS might end up permanently constrained in its interpretations on many fronts.

Progressives will probably force Becerra into the fight. At some point, the Supreme Court will have to issue a ruling on all the contours of religious freedom and conscience. The more progressives push this, the closer to a knockout we might actually get.

Update: This case involved the Franciscan Alliance, not the Sisters of Mercy. I had the wrong case up in one tab and confused the two (both are represented by Becket). I’ve corrected it above.