Missouri Attorney General Andrew Bailey led a 7-state coalition in filing suit against the Biden Administration’s Department of Health and Human Services (HHS) for its rule that forces healthcare providers to perform gender-transition intervention procedures and forces states to pay for them.
The rule, which Congress did not authorize, distorts Section 1557 of the Affordable Care Act to mandate that States and healthcare providers comply with a radical transgender ideology regardless of their personal beliefs regarding the wisdom and efficacy of transgender interventions.
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“Joe Biden is once again exceeding his legal authority in order to force his radical transgender ideology onto the American people. His Administration is threatening to hold federal funding hostage from any healthcare provider that refuses to perform or affirm harmful and irreversible transgender procedures,” said Attorney General Bailey. “I am filing suit because I will not allow out-of-touch federal bureaucrats to force Missouri healthcare providers into performing experimental and dangerous gender transition procedures on the taxpayer dime.”
The States demand that the Biden Administration withdraw the rule because:
- The rule is ultra vires—meaning that it was created without legal authority—as well as arbitrary, capricious, and an abuse of discretion;
- The rule exceeds Congress’s Article I enumerated powers and transgresses on the reserved powers of the States under the Constitution’s structural principles of federalism and the Tenth Amendment.
- It violates both the First and Fifth Amendment rights of healthcare providers;
- It employs unconstitutional coercion by threatening removal of federal healthcare funding; and
- It attempts to preempt the historic powers of the States to regulate health and welfare without a federal statute clearly permitting this.
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The lawsuit states, “Doctors should not be compelled to harm children. But a new final rule from the U.S. Department of Health and Human Services (HHS) under Section 1557 of the Affordable Care Act forces doctors to perform, refer for, or affirm harmful gender-transition procedures and forces States to pay for these dangerous procedures in state health plans. This radical mandate will hurt children.
“HHS threatens to punish doctors and States who do not comply with the mandate by imposing huge financial penalties and excluding them from federally funded healthcare programs like Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). This punishment would effectively preclude doctors and States from providing healthcare for the most vulnerable children in low-income communities.”
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They continue, “This harmful rule violates the Affordable Care Act (ACA), the Administrative Procedure Act (APA), the structural principles of federalism, and the freedom of speech. Congress did not authorize any of this. The rule purports to implement the sex-discrimination prohibition in Section 1557 of the ACA, but there is no gender-transition mandate in that statute, nor in Title IX of the Education Amendments of 1972 from which it is derived. Nor did the rule (or the ACA) satisfy the constitutional requirements of clear notice for such a mandate: the States and healthcare providers did not agree to provide, pay for, or affirm gender-transition procedures when they began Medicaid, Medicare, and CHIP.”
Missouri enacted the Save Adolescents From Experimentation (SAFE) Act, which went into effect in August 2023. This law prohibits healthcare providers from performing sex change surgeries on minors through August 28, 2027.
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