A federal judge on Saturday issued a written opinion blasting Health and Human Services Secretary Robert F. Kennedy Jr. for what he called his “wanton disregard” for the rule of law in restricting federal funding for gender-affirming care for minors.
“Unserious leaders are unsafe,” U.S. District Judge Mustafa T. Kasubhai wrote in a 49-page opinion.
Kasubhai’s written opinion follows his initial ruling from the bench last month when he sided with the state of Oregon and a coalition of 20 other states and the District of Columbia in finding that Kennedy exceeded his authority and his December declaration was unlawful.
The judge made it clear he was throwing out the Kennedy declaration. He also granted an injunction prohibiting the federal government from trying to supersede professionally-recognized standards for gender-affirming care for minors, which can include hormone therapy and other medical interventions that are recognized by the states.
“Secretary Kennedy’s unlawful declaration harmed children,” Kasubhai wrote. “This case illustrates that when a leader acts without authority and in the absence of the rule of law, he acts with cruelty.”
He found that the U.S. Department of Health and Human Services lacked the authority to unilaterally establish standards of medical care or exclude healthcare providers from federal funding for providing that care.
Oregon Attorney General Dan Rayfield praised the decision.
“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. “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.”
On Dec. 18, Kennedy issued the declaration titled, “Safety, Effectiveness, and Professional Standards of Care for Sex-Rejecting Procedures on Children and Adolescents,” which asserted that certain forms of gender-affirming care for children were “unsafe and ineffective.”
The same day, a press release issued by the federal agency proclaimed that the Kennedy declaration had found gender-affirming care for minors does “not meet professionally recognized standard of health care,” and that those who performed such sex-rejecting procedures on children would be considered out of compliance and face exclusion from federal funding.
Eight days later, the Health and Human Services department’s general counsel took to social media and announced the department had referred Seattle Children’s Hospital to its inspector general’s office for violating professional standards of care. Over the next month, the agency referred 11 more children’s hospitals for exclusion from federal funding.
By Feb. 3 of this year, the agency’s general counsel Mike Stuart touted the success of Kennedy’s declaration, noting that more than 30 hospitals and hospital systems had stopped providing gender-affirming care for minors.
In total, the federal agency referred at least 17 healthcare providers to be excluded from federal funding, yet it had not taken steps to begin the exclusion process due to the litigation filed in federal court in Eugene.
While lawyers from the U.S. Department of Justice argued that Kennedy’s declaration reflected his personal opinion on safety and was not binding without a final decision by the agency’s inspector general’s office, the judge found it was “strikingly apparent” that the declaration itself stated a new standard of care that the agency expected healthcare providers to comply with immediately.
There was nothing “ambiguous,” in the plain language of Kennedy’s declaration, which was referred to as a “clear directive,” the judge wrote.
The federal government’s arguments are based on the “bald-faced lie that the Kennedy Declaration amounts to nothing more than one man’s musings on gender-affirming care,” Kasubhai wrote. The judge continued that he was not persuaded by the federal government’s “attempts to gaslight” the court.
The judge found that Kennedy exceeded his authority by setting a new standard of care while bypassing standard rulemaking procedures. The agency failed to comply with Medicaid’s procedural requirements by not giving any advance notice of a proposed change published in the Federal Register, or offering an opportunity for comment as required under the Administrative Procedures Act (APA).
“This Court can scarcely recall an APA action that has come before it in which the agency’s action was so clearly unlawful,” the judge wrote.
Kasubhai also dismissed the federal government’s argument that finding Kennedy’s declaration unlawful would impinge on the secretary’s freedom of speech and expression, calling that “absurd.”
His ruling, the judge wrote, does not challenge Kennedy’s rights to express his views on gender-affirming care or limit his ability to speak generally.
“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,” the judge wrote. “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. Department of Justice attorney Kathryn L. Alkire argued against any injunction, saying it was not necessary if the judge planned to throw out Kennedy’s declaration.
“It is untethered to any specific agency action and improperly extends far beyond the only challenged agency action in this case, i.e., the Kennedy Declaration,” Alkire wrote to the court earlier this month.
The judge said he granted an injunction to make it perfectly clear to the administration what it cannot do, considering what he described as “this administration’s repeated flouting of court orders and the rule of law.”
Alkire did not immediately return a message Saturday seeking the federal government’s reaction to the ruling.
Joining Oregon in the suit were the states of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, Wisconsin and Pennsylvania.
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