The U.S. Court of Appeals for the Fifth Circuit has upheld a permanent injunction prohibiting the U.S. Department of Health and Human Services (HHS) from requiring faith-based healthcare providers to perform or provide insurance coverage for abortions or gender-transition procedures. The case is Franciscan Alliance, Inc. v. Becerra, No. 21-11174 (5th Cir. 2022).

In this long-standing dispute over the interpretation and enforcement of Section 1557 of the Affordable Care Act (ACA), the providers challenged portions of the regulations that prohibited discrimination in health programs and activities based on gender identity or termination of pregnancy. The trial court vacated the challenged provisions and later concluded that the provisions violated the Religious Freedom Restoration Act (RFRA). As a result, the court issued the permanent injunction in this case, and HHS appealed.

The Fifth Circuit upheld the trial court’s order vacating the challenged portions of the regulations and granting the permanent injunction because both actions were necessary to protect the providers against future HHS action. The court reached this conclusion based on recent HHS actions indicative of an intent to enforce Section 1557. These actions included regulations that HHS proposed in August 2022 and a notice on gender-affirming care issued in March 2022.

Despite this ruling, HHS continues to defend its interpretation of Section 1557 as protecting the right to receive pregnancy termination or health care related to gender identity. The HHS 2020 regulations remain in effect, although HHS has sought comments on the 2022 proposed regulations.