RICHMOND, Va. — West Virginia Attorney General Patrick Morrisey's office argued a case before the en banc United States Court of Appeals for the Fourth Circuit involving the state’s decision not to cover sex-transition surgeries under its Medicaid plan.
“We are asking the appeals court to overturn the district court’s flawed decision because under Medicaid, states have wide discretion to determine what procedures their programs can cover based on cost and other concerns,” Morrisey said of the September 21 arguments.
That case is an appeal from a recent order from a federal district court that the state’s choice not to cover “transsexual surgery” under Medicaid — procedures such as chest surgeries and vaginoplasties — violates the U.S. Constitution’s Equal Protection Clause. Usually three-judge panels decide cases on appeal, but the Fourth Circuit took the rare step of setting argument before the entire court in this case as well as a related case from North Carolina.
Morrisey
A single sex-transition surgery can cost tens of thousands of dollars. In Fiscal Year 2021, West Virginia spent more than $771 million of its own funds on its Medicaid program — the total budget including federal funds exceeds $4 billion. As healthcare costs increase, West Virginia is often forced to weigh cost and relative medical needs to make difficult decisions about what procedures the program can and cannot cover.
Most states do not cover such sex-transition surgeries under their respective Medicaid programs. The federal government’s own health insurance programs do not mandate coverage for transition surgeries, either, according to the appeal — and the U.S. military’s health insurance program specifically excludes coverage. In addition, many private insurance policies do not cover sex reassignments.
“Taxpayers should not be required to pay for these surgeries under Medicaid — our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens,” Morrisey said.
The 4th Circuit only heard two cases en banc last year and six in 2021. The 14 active judges are evenly split between those appointed by a Democratic president and a Republican president.
