Obama Can’t Redefine Sex A federal judge slaps down another executive overreach.
http://www.wsj.com/articles/obama-cant-redefine-sex-1483488594
Among President Obama’s ironic legacies will be how frequently this former teacher of constitutional law has been called out by the federal courts for his aggressive abuse of executive power.
The latest rebuke came on the last day of 2016 in federal court in Texas. Judge Reed O’Connor sided with eight states and three private health-care providers that sued to block a new Health and Human Services rule. This rule defines the Affordable Care Act’s prohibitions against sex discrimination in a way that plaintiffs say will force doctors, hospitals and insurers that take federal funds to cover or perform abortions and gender-transition procedures even when this runs against their best medical judgment or religious beliefs.
The HHS rule rests on a bureaucratic redefinition of sexual discrimination and the deliberate dropping of religious protections Congress included in Title IX. As Judge O’Connor noted, the Title IX prohibitions against sex discrimination passed by Congress “unambiguously” referred to the biological distinction between men and women. The HHS redefinition, he found, deserved no deference because it was not grounded in “a valid grant of authority from Congress.”
The other part of this injunction had to do with the claims by the religious plaintiffs—including a Catholic hospital system and a Christian society of doctors—that the rule violated their rights. Under the Religious Freedom Restoration Act, the government can infringe on religious exercise—but only where it has a compelling interest. Even when it does have a compelling interest, it has to choose the least restrictive way of pursuing it.
Judge O’Connor conceded that a preliminary injunction is “an extraordinary and drastic remedy, not to be granted routinely.” But he noted that Congress had not granted HHS the authority to redefine sex discrimination the way it had, and that the religious plaintiffs were likely to succeed on the merits.
In sum, another federal court has found the Obama Administration guilty of imposing its policy choices by fiat rather than doing the hard work of democracy and persuading the elected representatives of the American people. Donald Trump, please take note.
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