Refusing to respect the Constitution; the Church Amendment, which protects the conscience rights of doctors; or a 2016 court case brought by a religious hospital and more than 20,000 health care professionals, the Biden administration maintains it has sufficient authority to punish groups that don't perform gender "transition" surgery and abortions.  Following a pathway blazed by President Obama's Department of Health and Human Services (HHS) in 2016, rejecting conscience objections, the Biden administration breathed new life into the left's open season on religious hospitals and physicians.

Open season was initially closed because the Becket Fund for Religious Liberty stepped in to swiftly secure a preliminary injunction against the original rule in 2016.  After all, the original HHS rule violated the Administrative Procedures Act and likely violated the Religious Freedom Restoration Act.  Confirming this analysis, on January 21, 2021, a district court ruled in favor of Catholic groups contesting the HHS rule.  Hence, the transgender rule was blocked from taking effect.  This decision was upheld on appeal to the Eighth Circuit Court of Appeals on December 10, 2022.  

Additional litigation is possible because HHS refuses to take no for an answer.  Despite numerous judicial rulings verifying that the federal government lacks the authority to punish objectors, the Biden administration, richly infused with the Authoritarian Personality, has declined to accept several court invitations to stop.  Rather than take direction from courts, HHS maintains its policy by rewriting its old rule and then claiming that the new rule is consistent with judicial guidance.  Instead of accepting any reduction in its power to compel private individuals and institutions to conform to regulations validating fluid forms of human identity and advancing abortion, the Biden administration argues that the 2016 HHS rule provides a basis to punish those who refuse to submit to its fiat.

Notably, the lead actor in this subversive attempt to void the religious freedom of objectors is HHS secretary Xavier Becerra, who previously sought to punish journalists who exposed Planned Parenthood's sale of fetal remains harvested during abortions.  Becerra is a relentless culture warrior for the left.  Hence, it was no surprise that after HHS was shut down by court rulings from 2016 through 2021, he reissued a reworded version of the same rejected rule.

Believing that all politics is post-democratic and post-truth, federal government bureaucrats, invested in their own moral superiority, have explicitly embraced a faith-based secular moral order.  This moral order rests on the magical idea that elites who despise middle-class and working-class individuals know best regarding which religious views American citizens should be allowed to hold.  

Although major hospitals in Europe continue to curtail gender-related hormone regimens in response to internal reviews, particularly for pediatric patients, the Biden administration persists in its headlong assault on the religious liberty of doctors and hospitals via repetitive rule-making and disingenuous legal arguments.  Led by government authoritarians, this attack on freedom demands a further explanation.

Two explanations surface.  First, we live in a world wherein the reckless pursuit of identity is led by activists who assert that there are at least 97 genders.  Second, this frontal attack on liberty is driven by what Jonathan Cahn calls the totalitarian insistence that we all bow down and concede the dominion of new woke ethics in our daily lives and religious observances.  This explains why the federal government continues to ignore the courts while engaging in an endless administrative rule-making approach that disrespects the rule of law.

Properly understood, the original Obama HHS mandate has always sought to stifle debate regarding highly contested issues, including abortion and gender "transition."  Consistent with this approach, the Biden administration insists that Americans flee from St. Augustine's pursuit of the City of God and instead submit to the City of Man.

This move confirms the claim that the potential for fascism lies at the heart of modern liberalism and modern experience.  This insight attains added force since World Economic Forum (WEF) chair and founder Klaus Schwab declared that China, which has managed to imprison its citizens in their apartments to fight COVID-19, is nothing less than a role model for many countries.  The Biden administration's behavior suggests that it is okay to be an authoritarian so long as it confirms the correct values.

This pattern raises two critical questions.  First, when will the federal government's administrative rule-making strategy end, and second, when will the totalitarian ambition cease?

The first question answers itself: termination of this strategy begins when courts issue orders backed by the full force of the Constitution, thus driving a stake through the heart of the government's resistance to follow the law.  Consistent with this answer, conscience objectors should take heart from the August 2022 decision by the Fifth Circuit Court of Appeals blocking the Biden administration from coercing doctors to violate their conscience or medical judgment.

Similarly, objectors should be encouraged because the Eight Circuit Court of Appeals affirmed a lower court decision blocking the enforcement of the HHS rule this past week.  Both circuit courts reached their decisions mainly because the plaintiffs have established a high likelihood that the HHS rule violates the Religious Freedom Restoration Act.  Hence, the plaintiffs can show irreparable harm.  Consequently, the courts blocked the HHS rule.

Although these court victories are welcome, they are not enough, since so many authoritarians remain hidden in the bowels of Washington, D.C.  Hence, judges need to find ways to actively punish our highly inventive neo-authoritarian bureaucrats by imposing penalties for administrative misbehavior.

As for the second issue — the totalitarian ambition — the American people must courageously reclaim the power and attitude of eternal vigilance.  Otherwise, unelected bureaucrats driven by transgressive preferences and subversive ideas will run amok and shrink freedoms guaranteed by the United States Constitution.  This means we must be prepared to fight all of America's enemies, foreign and domestic.

Harry G. Hutchison is a distinguished law professor at Regent University.  His latest book is Requiem for Reality: Critical Race Theocrats and Social Justice Dystopia.

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