Abortion became a legal procedure in 1973. According to the Supreme Court, it’s about a woman’s right to privacy. More than 40 years later, a Republican judge put a new spin on the abortion debate. He ruled that it’s fine for a doctor to discriminate against a woman who’s ever had an abortion. They can discriminate against men too, but only if the man was born with female body parts.
The Affordable Care Act (Obamacare) forbids discrimination on the basis of sex or gender identity. It also forbids discrimination based on whether a woman has had an abortion. In other words, the Federal Government has applied a fairly broad definition to sex discrimination, as they should.
U.S. Justice Reed O’Connor has a different vision, though. He ruled that sex discrimination has only one meaning – discrimination against a woman for being a woman or a man for being a man. As Slate points out, though, who is to determine who is a man or who is a woman?
But O’Connor recognizes only one kind of sex discrimination: hostility against a man or woman for being a man or a woman. This belief directly contradicts Supreme Court authority; it also doesn’t make much sense, since it only raises the key question of who decides whether an individual is a man or a woman. (Is discrimination against an intersex person not sex discrimination? What about a person with ambiguous genitalia who identifies as male?) Still, O’Connor got away with this blinkered understanding of sex in blocking federal guidelines on bathroom access for transgender students. And naturally he pulled the same trick here, holding that the HHS rule does not build upon “sex discrimination” and is therefore unlawful.
Clearly, this ruling was based on the ludicrous idea that religious people are being discriminated against when they are being told they can’t discriminate, much like the Hobby Lobby ruling, which allowed businesses to discriminate against women by not offering birth control with their company insurance plans. Ironically, they don’t have to offer paid maternity leave or help out with any of the consequences from not having access to birth control. Still, O’Connor tried to rationalize it, calling insuring transgender people a “burden.”
That fear is now an undeniable reality. O’Connor held that treating transgender patients—and even insuring transgender patients—“substantially burdens” insurance companies and hospitals’ “exercise of religion.” As a result, under RFRA, the HHS rule must be “the least restrictive means of furthering [a] compelling government interest.” O’Connor decided that the rule did not constitute “the least restrictive means” of preventing discrimination. Why not? Because “the government [can] assume the cost” of transgender-related treatment, and “assist transgender individuals in finding” a doctor who will treat them. The judge then goes on to suggest that protecting transgender people from discrimination isn’t actually a “compelling government interest” in the first place.
As for the abortion part of the ruling, well, doctors are not, and have never been, required to perform abortions. This, though, would allow a doctor to not treat a 55-year-old woman for, let’s say cancer, just because she had an abortion at 17.
The most bizarre part of the ruling, though, had nothing to do with the law and everything to do with 16th Century thinking. The Christian medical associations who brought the suit argued that treating either transgender patients or women who’ve had abortions is tantamount to “material cooperation with evil.” What century are we in again?
This ruling, though, would open the doors to other types of discrimination, essentially against anything a religious doctor might find yucky, like treating LGBT people or the children of LGBT people.
Many will shrug their shoulders and argue that it’s no big deal, that the majority of doctors will still treat all patients. While it’s hard to say that’s true right now, in some parts of the country, it’s not that simple. In many parts of the South, for example, it might be difficult to find a doctor who’s willing to treat either a woman who’s had an abortion or a transgender person. Funny, though, that doctors are still not allowed to discriminate against people born male or Christians.
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