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Like 5th Circuit, 8th Circuit strikes down transgender mandate

The mandate would have required doctors and hospitals to perform gender-transition procedures on patients

WASHINGTON — The 8th U.S. Circuit Court of Appeals in St. Louis Dec. 9 permanently blocked a transgender mandate the U.S. Department of Health and Human Services had implemented as a revision to the Affordable Care Act.

The mandate forces doctors and hospitals to perform gender-transition procedures on their patients even if this violates their conscience and best medical judgment.

The 8th Circuit concluded the mandate violates a key federal law protecting religious liberty — the Religious Freedom Restoration Act.

The Biden administration has 45 days from the date of the ruling to ask the 8th Circuit to rehear the case, Sisters of Mercy v. Becerra, or 90 days to appeal to the U.S. Supreme Court.

“Becerra” is HHS Secretary Xavier Becerra.

“The federal government has no business forcing doctors to violate their consciences or perform controversial procedures that could permanently harm their patients,” said Luke Goodrich, vice president and senior counsel at Becket, a Washington-based religious liberty law firm representing the plaintiffs.

“This is a commonsense ruling that protects patients, aligns with best medical practice, and ensures doctors can follow their Hippocratic oath to ‘do no harm,’” he said in a Dec. 9 statement.

The 8th Circuit’s ruling echoes a unanimous ruling by the 5th U.S. Circuit Court of Appeals in New Orleans, which struck down the mandate in a late August ruling in Franciscan Alliance v. Becerra.

Becket represented Franciscan Alliance, a Catholic health care network, and a group of nearly 19,000 health care professionals who first sued HHS over the mandate in 2016.

On Aug. 4, the 5th Circuit heard oral arguments in the case.

“Franciscan Alliance and the Sisters of St. Francis of Perpetual Adoration seek to carry on Jesus Christ’s healing ministry by providing the best possible care to every person who comes through our doors,” said Sister Petra Nielsen, a Sister of St. Francis of Perpetual Adoration, who is a member of the Franciscan Alliance’s corporate board.

“We are simply asking the courts to let us keep caring for all our patients with joy and compassion — as we’ve done for over 145 years,” she said in a statement released by Becket ahead of the oral arguments.

The 5th Circuit Aug. 26 affirmed a U.S. District Court’s order “permanently enjoining (HHS) from requiring Franciscan Alliance to perform gender-reassignment surgeries or abortions in violation of its sincerely held religious beliefs.”

In May 2016, under the Obama administration, the HHS civil rights office finalized regulations for an ACA provision called Section 1557.

The agency added “sexual orientation and gender identity” to the provision, which prohibits discrimination on the basis of race, color, national origin, age, disability or sex — including pregnancy — in covered health programs or activities.

The mandate required doctors to perform gender transition procedures on any patient, including children, and required private insurance companies — except plans run by Medicare and Medicaid — and many employers to cover gender reassignment therapy or face severe penalties and legal action.

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