Published April 8, 2024
“It won’t change anything.” That’s a common refrain I hear when my colleagues with the Ethics and Public Policy Center’s HHS Accountability Project and I urge organizations and individuals on the right to submit public comments on rules proposed by federal agencies.
Before an agency rule has the force and effect of law, an agency must provide the public an opportunity to provide formal written public input on the agency’s proposal. The agency is then required to consider and respond to these comments in its final rule.
Those hesitant to participate in the rulemaking process are correct that it is unreasonable to expect that a well-reasoned comment would move an agency to completely abandon the current administration’s policy agenda.
But just because comments won’t change everything doesn’t mean they won’t change some things. And sometimes, those changes can be significant.
For example, in May 2022, the Department of Health and Human Services (HHS) abandoned its proposal to mandate insurance coverage of medical “gender transitions,” including for children. Why? HHS needed to finalize the other proposed insurance regulations for the next plan year and didn’t want to take the time to respond to the many comments detailing the serious harms of medical transition, especially for children. Of course, the transgender insurance mandate was re-proposed later, but that rule has yet to be finalized. Without comments opposing the mandate, HHS could have easily pushed it through two years ago.
In January 2024, HHS issued a final rule on conscience rights in health care, where it made several changes “in response to comments that generally asked for more clarity in the rule text.” As my EPPC colleague Eric Kniffin and I wrote elsewhere, those changes “on the whole, strengthen protections for healthcare conscience rights.” Although HHS still chose to gut many substantive provisions that 20-plus commenters urged the department to keep, the regulatory text in the final rule is stronger than it would have been without those comments seeking clarity.
The most recent example came last week when the White House Office of Management and Budget (OMB) responded to commenters’ concerns in its final “Uniform Guidance” for agencies in making grants and providing federal financial assistance.
In October 2023, OMB proposed modifying the guidance, including changes to a regulation that establishes the statutory and national policy requirements for federal awards. OMB proposed eliminating references to the requirements to protect free speech and religious liberty while retaining a reference to the requirement to prohibit discrimination. OMB also proposed adding two new provisions to the regulation focused specifically on discrimination based on sexual orientation and gender identity.
The first provision would require agencies to ensure that federal awards that are subject to federal sex-discrimination statutes are “administered in a way that does not unlawfully discriminate based on sexual orientation or gender identity, consistent with the Supreme Court’s reasoning in Bostock v. Clayton County.”
The second provision would require agencies administering federal awards to “take account of the heightened constitutional scrutiny that may apply under the Constitution’s Equal Protection clause for government action that provides differential treatment based on sexual orientation or gender identity.”
OMB explained that these changes were consistent with two Biden executive orders promoting LGBT rights.
The juxtaposition of the proposed changes — dropping the references to free speech and religious liberty while retaining a reference to discrimination and adding two new provisions focused exclusively on sexual orientation and gender identity — sent a message that LGBT rights trump religious liberty. Indeed, this was not the first time the Biden administration has proposed regulations elevating nondiscrimination based on sexual orientation and gender identity while simultaneously minimizing protections for religious freedom and conscience rights.
Several other commenters and I raised concerns with OMB’s proposal, especially its impact on religious freedom for faith-based organizations receiving federal awards.
In its final guidance, OMB took seven pages to address commenters’ concerns. At the outset, OMB emphasized two points: (1) Agencies must implement the regulation “consistent with their legal authority and the particular statutes and regulations governing each of their Federal financial assistance programs”; and (2) the regulation “does not impose any new legal requirements” and explains only that agencies must implement their programs consist with “other, existing legal requirements that apply of their own force.”
In response to concerns raised by commenters, OMB made three significant improvements to the text of the regulation.
First, OMB retained the references to protecting free speech and religious liberty in the final regulation. OMB explained that it was doing so “to eliminate any confusion and allay concerns that OMB was singling out certain protections.” OMB further clarified that all awards must be implemented “in full accordance” with applicable constitutional, statutory, and regulatory provisions, including the free-exercise clause of the First Amendment, the Religious Freedom Restoration Act, and other provisions protecting religious liberty. As such, the regulation “will not affect” the ability of faith-based organizations to participate in agencies’ programs.
Second, OMB clarified that the prohibition against discrimination based on sexual orientation and gender identity applies only “if the statute’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity.” Significantly, this provision “does not impose any new nondiscrimination requirements.”
Third, the final provision was revised to reference “heightened constitutional scrutiny that may apply under the Constitution’s Equal Protection guarantee for government action that provides differential treatment based on protected characteristics.” Here, OMB dropped the specific references to sexual orientation and gender identity; instead, it refers to “all characteristics” that might require “heightened constitutional scrutiny under equal protection principles.” OMB also dropped the reference to the 14th Amendment, which commenters pointed out does not apply to the federal government. Avoiding the embarrassing error, OMB confirmed that it is instead “referring to the Fifth Amendment’s equal protection guarantee, which does apply to the Federal government.”
It is evident that without comments, these improvements would not have happened.
This is a win for religious liberty and a win for public comments and participation in the rulemaking process.
Public comments can and do lead to significant change.
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.
