September 17, 2020

PPACA Section 1557 Litigation Update

On September 2, Judge James Boasberg of the United States District Court for the District of Columbia ruled on the Whitman-Walker Clinic’s motion to preliminarily enjoin enforcement of HHS’ recently revised PPACA Section 1557 individual anti-discrimination rule. The Court preliminarily enjoined both HHS’ repeal of the sex discrimination definition found in the predecessor Obama Administration’s rule, which offer protection to transgendered people, and HHS’ application of Title IX’s religious organization exemption to PPACA Section 1557. The Court permitted the remainder of the revised PPACA Section 1557 to remain in effect.

On August 17, the day before the revised rule took effect, the United States District Court for the Eastern District of New York also enjoined the repeal of the sex discrimination definition.  The plaintiffs in that case asked the Court to clarify the scope of its order. On September 8, the Court stated that the August 17 ruling “speaks for itself”, but requested that the plaintiffs file a list of provisions of the revised rule that they believed should be also enjoined in light of Bostock v. Clayton County. The plaintiffs timely filed their list on September 15, 2020.

Although permitted to do so by 28 U.S.C. Sec. 1292(a), the federal government has not appealed Judge Block’s decision, and neither party has appealed from Judge Boasberg’s decision as of September 16.