CIR Comment to HHS/CMS on Proposed Rule Restricting Certain Procedures for Minors 

The Center for Individual Rights submitted a public comment urging the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) to withdraw a proposed rule that would condition participation in either program on a prohibition against hospitals performing defined “sex-rejecting procedures” on patients under 18. CIR takes no position on the underlying policy but argues that the HHS/CMS rule constitutes an attempt to nationalize a contested medical policy through Medicare participation leverage in a way that raises serious constitutional concerns. Indeed, the proposed rule ignores core principles of federalism and improperly attempts to regulate the practice of medicine at a national level.

The rulemaking comment explains that: 

Almost twice as many states currently prohibit the delivery of medical or surgical gender affirming care for minors, as shield or require such care in certain circumstances. The federal power asserted in the proposed rule to pre-empt and override the minority state position today could be used to dictate the opposite result and override the majority state position in the future. That power does not exist for either policy objective. There is no federal power over the practice of medicine generally. Moreover, threatening to withdraw almost $1 trillion in federal spending should local jurisdictions follow their own laws far exceeds the outer limits of the federal spending power. The proposed rule should therefore be withdrawn. 

Read the full comment here.

What to Know 

In the proposed rule, CMS would revise Medicare hospital Conditions of Participation to prohibit participating hospitals from performing defined “sex-rejecting procedures” on minors under 18. Because it is a condition of participation, the restriction would apply broadly to any facility that accepts Medicare or Medicaid, not just to care directly funded by federal dollars.  

CMS also asserts the rule would preempt certain state and local laws that require public hospitals to provide certain types of care. The federal government has no power to set a national policy in this area, much less override local law through a spending statute.  

The rule’s preemption theory is not only legally vulnerable, the threats to rescind Medicare participation is unlawfully coercive, especially given the rule’s sweeping impact on the healthcare system nationwide. 

Why This Matters 

The variation in state policy is a core feature of federalism, not a problem for Washington to “solve.” States function as laboratories of democracy, testing different approaches and remaining accountable to their own voters. In some cases, Congress has the power to legislate a national rule through direct legislation, but federal agencies are limited in setting national policy for good reasons—and spending statutes are especially prone to abuse and wild swings in different administrations.  

People can respond to differing state policies through ordinary political means, and in many cases, by relocating, rather than having one national rule imposed through an agency. CMS is trying to undermine this dynamic system by using Medicare participation as leverage to force a uniform nationwide policy, a move that would invite federal agencies to override state choices in other contested areas of medical regulation.  

Under the CMS draft rule, hospitals and clinicians could be pushed into an impossible choice: comply with federal participation conditions and risk conflict with state requirements, or follow state law and risk federal program consequences. Whatever one thinks of the underlying policy, a dispute this significant should be resolved through lawful democratic and legislative processes, not by agency pressure that tests constitutional limits and leaves providers with no real choice.