HHS’s Crusade Against Religious Freedom and Conscience Rights in Healthcare

Published June 9, 2023

Religious Freedom Institute

Endangering the care of elderly, disabled, and low-income patients, the Department of Health and Human Services’ (HHS) Centers for Medicare & Medicaid Services recently threatened to strip federal funding from an Oklahoma Catholic hospital. The reason? The hospital had a small sacred candle lit in its chapel — an act of worship it has maintained for over 60 years. Thankfully, last month HHS agreed to give up its attack on the hospital’s religious candle.

This attack marks the latest action by HHS targeting religion in healthcare. Since President Biden took office in January 2021, HHS has aggressively gone after people of faith and gratuitously sought ways to limit religious freedom and conscience rights.

In the throes of the COVID-19 pandemic, Biden appointed former attorney general (AG) of California Xavier Becerra as Secretary of HHS. Becerra is not a medical professional and had no public health experience but was (and is) well-known for his zealous pro-abortion agenda. As California AG, Becerra sued the Little Sisters of the Poor, an order of Catholic nuns, over their religious exemption to HHS’s contraceptive mandate. HHS under the Trump administration served to Becerra and the state of California two notices of violation for infringing the federal conscience protections that the Little Sisters rightly enjoy under U.S. law. Authorities in California were intent on forcing nuns (and others) to provide insurance coverage for abortion. (Conveniently, after Becerra became secretary, HHS reassessed the conscience violations and decided there were none.)

In his first year as secretary, Becerra removed the HHS Office for Civil Rights’ authority to enforce conscience and religious freedom protections under the bipartisan Religious Freedom Restoration Act (RFRA) and the First Amendment. He also sidelined and eventually eliminated the office’s Conscience and Religious Freedom Division.

Becerra’s first year was a foreshadowing of what was coming. In lockstep with the Biden administration’s policy priorities, HHS has sought creative and unlawful ways to promote abortion and “gender identity,” even and especially at the expense of religious freedom and conscience protections.

Last year, HHS issued a “notice and guidance” (which was declared unlawful in court) and proposed two rules that would impose a “gender identity mandate” in healthcare. The mandate, under the guise of nondiscrimination, would require medical professionals and entities to provide (and insure) “gender-transition interventions,” including puberty blockers, cross-sex hormones, and surgeries for children — some of which are irreversible — in violation of best medical judgments, religious beliefs, or moral convictions.

In perhaps the most direct attack on religious freedom, HHS proposed rescinding regulations protecting conscience rights in healthcare earlier this year. Unironically, HHS claimed the proposal would “restore the longstanding process for the handling of conscience complaints and provide additional safeguards to protect against conscience and religious discrimination.” Becerra added, “No one should be discriminated against because of their religious or moral beliefs, especially when they are seeking or providing care.” In reality, HHS’s proposal would eliminate robust enforcement mechanisms for over two dozen federal conscience protection laws. These laws provide protections for entities and individuals that do not want to participate in or pay for the most controversial medical interventions — such as abortion, sterilization, and assisted suicide — based on moral convictions or religious belief. HHS seeks unlawfully to “balance” these protections against the Biden administration’s pro-abortion and pro-“gender identity” agenda.

In March, HHS proposed another rule that would modify conscience protections, this time for HHS’s contraceptive mandate. The proposal would eliminate moral exemptions for those that object to contraceptive coverage based on non-religious moral beliefs. It would also create a legally dubious arrangement where taxpayer dollars would be funneled to third parties, such as Planned Parenthood and other abortion providers, to provide contraceptive services.

Thankfully, last month HHS agreed to give up its attack on the Oklahoma Catholic hospital’s religious candle. Unfortunately, however, HHS continues to disregard religious actors’ strenuous objections to government mandates in a range of areas that implicate their core convictions about the nature and dignity of the human person.

Rachel N. Morrison is an attorney and Fellow at the Ethics and Public Policy Center (EPPC), where she directs EPPC’s HHS Accountability Project.

Natalie Dodson is a Policy Analyst with EPPC’s HHS Accountability Project.

Picture from Unsplash

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

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