“Secretary Kennedy’s unlawful declaration harmed children. This case illustrates that when a leader acts without authority and in the absence of the rule of law, he acts with cruelty,” Kasubhai wrote.
Kasubhai vacated the Dec. 18 declaration on “Safety, Effectiveness and Professional Standards of Care for Sex-Rejecting Procedures on Children and Adolescents,” as unlawful, saying Kennedy exceeded his authority and failed to follow required procedures for setting regulations.
He also ruled that federal officials lack the authority to set standards that supersede standards of care in the 21 states and the District of Columbia that sued to block the directive. And he prohibited HHS from trying to enforce the “Kennedy Declaration” or “any materially similar policy.”
In a brief emailed statement, HHS spokesperson Emily Hilliard said, “HHS will continue to fight to protect our nation’s children, as this Biden-appointed judge’s ruling puts radical ideology ahead of their safety.”
Maryland was one of 21 states and D.C. that filed suit on Dec. 23, claiming Kennedy’s directive exceeded his authority, violated the states’ rights to manage their Medicare systems as they saw fit and effectively banned “by fiat, an entire category of healthcare.”
Maryland Attorney General Anthony Brown welcomed the ruling in a prepared statement Monday as “a victory for every young Marylander, all of whom deserve access to the medical care their doctor recommends that is free from political interference.”
That was echoed by Oregon Attorney General Dan Rayfield, the lead plaintiff in the lawsuit.
“When families and doctors make healthcare decisions together, no federal official should be able to use threats and intimidation to get in the way,” Rayfield said in a statement Monday. “That’s what Secretary Kennedy tried to do — force hospitals and providers to abandon their patients. Oregon will always stand up for the dignity and wellbeing of every person.”
The dispute stems from the Dec. 18 directive that says, “Sex-rejecting procedures for children and adolescents are neither safe nor effective as a treatment modality for gender dysphoria, gender incongruence, or other related disorders in minors, and therefore, fail to meet professional [sic] recognized standards of health care.”
Kennedy said in a news conference that day, according to Kasubhai’s opinion, that the declaration should be taken as “a clear directive to providers to follow the science and the overwhelming body of evidence that these procedures hurt — not help — children” and that anyone providing such care would be “out of compliance with these standards of healthcare.”
The Kennedy Declaration exceeded Defendants’ statutory authority, flouted applicable notice and comment rulemaking procedures, and impeded Plaintiffs’ rights to regulate the medical profession and their discretion to design their own statutorily-compliant Medicaid plans,
– U.S. District Judge for Oregon Mustafa Kasubhai
Any health care provider that fails to meet professionally recognized standards of care can be excluded from participation in Medicare and Medicaid — effectively cut off from federal funding — on a finding by the HHS Office of Inspector General.
In the weeks after the directive was issued, HHS General Counsel Mike Stuart referred 18 health care facilities that offered gender-affirming care to the inspector general for investigation under the Dec. 18 directive. Included in the referrals were the Johns Hopkins Center for Transgender and Gender Expansive Health and Hopkins’ Emerge Gender and Sexuality Clinic.
The directive had the intended effect. By Feb. 11, Stuart was saying on social media that “more than 40 hospital systems across the country have made the right decision to stop these heinous procedures.”
HHS argued in court that the declaration was not a “‘definitive statement’ on the standard of care” that the inspector general has to apply, but merely Kennedy’s musings on the topic, and could not be challenged by the states as an official regulation. And because the inspector general has not ruled on any of the referrals, there is no damage for the states to assert, the government said.
It also claimed that reversing the directive would deny Kennedy his First Amendment right to express his views on important public issues.
Kasubhai called that argument “absurd,” and said he could “scarcely recall an … action that has come before it [the court] in which the agency’s action was so clearly unlawful.” He said many of the government’s arguments were based on “falsehoods.”
“Defendants cannot bully or gaslight this Court into ignoring the many procedural and legal flaws of the Kennedy Declaration by invoking one of the most sacred principles of our constitutional democracy — the freedom of speech — when that principle comes nowhere close to being implicated,” Kasubhai wrote.
He said the states’ lawsuit has nothing to do with Kennedy’s right to express his opinion about gender-affirming care for minors.
“Rather, Plaintiffs’ claims challenge Secretary Kennedy’s authority to unilaterally, categorically, and without any process, supersede professional standards of care regarding gender-affirming care that apply in the Plaintiff states,” he wrote.
What is at stake, Kasubhai said, is the rule of law and state sovereignty.
“The Kennedy Declaration exceeded Defendants’ statutory authority, flouted applicable notice and comment rulemaking procedures, and impeded Plaintiffs’ rights to regulate the medical profession and their discretion to design their own statutorily-compliant Medicaid plans,” he wrote, before entering his order.
In addition to Maryland, Oregon and D.C., states involved in the suit included California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.
— This story was updated at 6 p.m. Tuesday to correct the number of states involved in the lawsuit against HHS.
This story was originally produced by Maryland Matters, which is part of States Newsroom, a nonprofit news network which includes Oregon Capital Chronicle, and is supported by grants and a coalition of donors as a 501c(3) public charity.
Oregon Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Julia Shumway for questions: info@oregoncapitalchronicle.com.
