Published February 5, 2021
Roger Severino, the outgoing director of the U.S. Department of Health and Human Service’s Office of Civil Rights, stepped down from his high-profile role last month, after launching a new division dedicated to the protection of conscience rights and religious freedom.
A Catholic pro-life lawyer, Severino is OCR’s longest-serving director in the past three decades and sparked headlines as his office took up cases, like one involving a Vermont hospital that allegedly forced a nurse to participate in an abortion against her beliefs.
Severino also clashed with California Attorney General Xavier Becerra over issues like the Trump administration’s rollback of President Barack Obama’s gender-transition mandate and the state’s alleged violation of the Weldon Amendment, a federal statute that is designed to protect the conscience rights of health-care providers.
During the past year, as the pandemic fueled a heated debate in some quarters over the proposed rationing of hospital beds, ventilators and protective equipment, Severino’s office addressed complaints of discriminatory treatment involving the elderly and disabled.
More recently, Severino was appointed to the Council of the Administrative Conference of the United States (ACUS) in the final days of the Trump administration. The ACUS studies and advises on various administrative processes to improve efficiency, and the council is separate from any executive power.
On Feb. 3, Severino filed suit against the Biden White House, alleging that it had improperly pressed him to resign from the council well before the end of his three-year term, and then fired him when he refused.
Register Senior Editor Joan Frawley Desmond spoke with Severino on Feb. 4 about the guiding principles and highlights of his tenure at OCR and his plans to secure gains made in conscience rights and religious-freedom protections as President Joe Biden resets goals for this office.
Your suit filed this week alleges that the Biden White House Presidential Personnel Office asked you to resign by Feb. 3, and if you refused, you would be fired. Why did you take legal action?
I want to hold President Biden accountable. The law governing my appointment says it was for three years and was duly signed by the president when I took the oath of office. I am well qualified for the position.
I want to make sure the rules are clear and applied fairly. President Trump did not dismiss Obama holdovers on this counsel. But President Biden has attempted to erase those who were duly appointed. This exposes the fact that President Biden’s rhetoric about unity doesn’t match his actions. It seems petty and vindictive to try to remove qualified people who care about good governance.
Under your leadership at HHS, the Office of Civil Rights (OCR) created a Conscience and Religious Freedom Division (CRFD) dedicated to enforcing laws that protect conscience and religious exercise and that prohibit coercion and religious discrimination in health care. Why did you push for this?
The key inspiration was seeing the trend in American culture that reflected growing attacks on people of conscience, starting with the Obama administration’s attack on the Little Sisters of the Poor and threatening to fine them out of serving the elderly poor because they wouldn’t provide contraceptive coverage to other sisters. That gross abuse of religious liberty signaled to me that something was terribly wrong with how the federal government approached these questions.
So I launched a Conscience and Religious Freedom Division to institutionalize those protections, just like we have institutionalized protections for every other civil right. That was the vision, and I am so proud of making that vision a reality.
Why was there so much resistance within the HHS to this initiative?
There was resistance at all levels. Any change in the status quo means disrupting vested interests and long-engrained habits. Unfortunately, the federal government employees simply did not respect the law, and they needed to be informed and held accountable; and that was what was missing. There was no body there to stand up for religious minorities within the government, until now.
Part of it is a secularist mindset that had taken root in the government, a notion that anything to do with religion had to be excluded because it was religion. But that [mindset], of course, leads to discrimination.
After you opened the new division, Planned Parenthood claimed that, under your leadership, the HHS Office for Civil Rights changed its mission from ensuring equal access to federal health programs to protecting religious freedom.
What is your response?
We were a full-spectrum civil-rights office.
For example, during the pandemic, we formed an incredible coalition of people who were pro-life, pro-disability rights and pro-civil rights. We fought back against a utilitarian ethic that threatened to throw people with disabilities overboard in the middle of the COVID crisis, particularly on the issue of triaging lifesaving care. We fought back, and I am tremendously proud of that.
In one key enforcement action, your office found the state of California to be in violation of the Weldon Amendment, due to the state illegally mandating all health-care plans subject to regulation by the California Department of Managed Health Care to cover abortion without exclusion or limitation. What happened in this case?
In January 2020, we sent a notice of violation that informed the [state of California] that they were in violation of the law. They cannot coerce people to buy abortion coverage. They cannot be receiving federal funds and not expect consequences for violating [federal law].
In January 2021, they received their notice of disallowance, and they are not supposed to claim $200 million per fiscal quarter in reimbursements under Medicaid until they cure the violation.
I have not seen any evidence that they have tried to come into compliance. Based on the timing of the first-quarter disbursement, the federal money would be disallowed. If the Biden administration cares about the law and following it, they are obligated to hold California accountable. The law is crystal clear. California cannot be receiving federal funds and continue to discriminate against people who decline to pay for abortions.
While your office stepped up investigations and enforcement of conscience protections, critics accused you of blurring the lines between church and state and even redefining religious freedom to impose “one set of beliefs on all Americans.” What is your response?
I always came back to fundamental constitutional principles and the law. There is a reason why our first freedom is freedom of exercise. This is not simply that you have freedom to worship in a mosque, temple or within the four walls of a church.
We have a fundamental right to ask questions about God, reach conclusions, and to live by them freely.
We have a right to live out our faith without government discrimination or excessive burdens [imposed by the state]. But if we don’t enforce those principles, religious freedom will disappear in a generation, to the detriment of religious believers and nonbelievers alike.
Would you discuss OCR’s efforts to secure conscience protections for health-care workers and institutions who, because of religious or professional objections, will not participate in sex-reassignment surgeries and other treatments for patients who identify as transgender?
My goal is always to enforce the law as passed by Congress. … Now we are seeing an after-the-fact redefinition [of sexual discrimination] that is not supported by the text of the law Congress passed or the actual understanding of the words “male” and ”female” today.
During your tenure at OCR, the Supreme Court waded into this question with its 2020 ruling in Bostock v. Clayton County, which found that Title VII — the federal law prohibiting discrimination in employment based on sex — applied to sexual orientation and gender identity. That decision has contributed to split federal district court rulings that either support Obama’s gender-transition mandate requiring physicians to participate in transgender surgeries, if such a referral has been issued, even if they object on religious or medical grounds, or uphold the office’s rollback of that mandate.
In 2020, Justice [Neil] Gorsuch surprised the world with his majority decision in Bostock, and now we are trying to sort out the full consequences of that decision. [The split rulings] created a mass of confusion, which I hope the Supreme court will be able to resolve. Biological realities in health care make a tremendous difference in science and medical treatment.
Gorsuch did make clear there were important religious-liberty interests at play as well as privacy interests to be taken up at a later date. That later date is essentially upon us now.
What are your concerns as the Biden administration begins its work?
I launched a new initiative at the Ethics and Public Policy Center called the HHS Accountability Project to make sure the Biden administration does not undo many of the things I and others built to protect religious freedom and civil rights according to the proper understanding of both the human person and of the law.
The Biden administration has nominated Xavier Becerra, who was my primary antagonist when I was head of the Civil Rights Office because he wanted to force nuns to pay for abortion coverage for fellow nuns in his state, and I said that was unlawful. So his primary qualification for being head of HHS is violating health-care conscience-protection laws; a rather odd choice.
So that will be my primary focus: protecting the legacy of our defense of religious freedom, human life and science free from ideology when it comes to health care.
I also want to make sure that the disability-rights protections that I put in place will not only be protected but expanded upon. This is an issue where the right and the left should both be able to find common ground.
Roger Severino is a senior fellow at the Ethics and Public Policy Center. Joan Frawley Desmond is the National Catholic Register’s senior editor.