This summer, the Supreme Court ruled that the Trump administration had the authority to exempt religious groups from the Affordable Care Act’s contraceptive mandate. The mandate, first instituted by President Barack Obama’s Health and Human Services (HHS) Department, required nearly all employers to cover birth control and abortion-inducing drugs in their health-insurance plans, regardless of religious or conscience objections.
When Donald Trump took office, his administration moved to soften the mandate, offering broader exceptions that allowed employers to avoid subsidizing these drugs if their religious beliefs or conscience forbid them from doing so. Among the groups that benefited from these exemptions was the Little Sisters of the Poor, a charitable order of Catholic nuns that cares for the sick and elderly poor.
In response to the Court’s ruling, Joe Biden promised that his administration would undo those exemptions. “I am disappointed in today’s U.S. Supreme Court decision that will make it easier for the Trump-Pence Administration to continue to strip health care from women — attempting to carve out broad exemptions to the Affordable Care Act’s commitment to giving all women free access to recommended contraception,” Biden said at the time.
Biden added that, if elected, he’d restore the policy as it “existed before the Hobby Lobby ruling.” While Biden might wish to do so, and indeed seems to believe he has the requisite authority, it’s unclear how he hopes to accomplish such a goal, considering that the Court in Hobby Lobby determined that the company deserved an exemption as a result of its owners’ religious beliefs.
Despite this radical promise, Biden continued to campaign for president as a moderate, and since having been elected has implied that his administration will take a middle road palatable to most Americans. But with the recent announcement that Biden will nominate California attorney general Xavier Becerra to head HHS, it is clear that the incoming president has no intention of moderating, at least when it comes to an issue as important and controversial as abortion.
If confirmed to the position, Becerra will take the lead not only on reinstating the most aggressive form of the contraceptive mandate — almost certainly requiring the Little Sisters to head to court to defend their religious-conscience rights yet again — but he will have the power to enact a vast array of radical domestic policies pushed by the executive branch with little congressional oversight.
As my colleagues and our editors here at NRO have noted, Becerra is about as radical of a progressive as you can find in today’s Democratic Party, especially on abortion. As a congressman from California, he received a 100 percent rating from leading abortion-rights groups Planned Parenthood and NARAL Pro-Choice America.
Isaac Schorr notes that Becerra voted “against the Conscience Protection Act of 2016, which barred the federal as well as any state or local government from penalizing or discriminating against health-care providers that do not ‘perform, refer for, pay for, or otherwise participate in abortion.’” Becerra also voted against the Prenatal Non-Discrimination Act, which would have made it illegal to perform an abortion chosen on the basis of the unborn child’s sex.
As California’s attorney general, Becerra filed felony charges against pro-life activists who exposed Planned Parenthood’s involvement in illegally selling body parts of aborted babies. Becerra also has defended a California law that requires churches to cover elective abortion in their health-insurance plans. Though the Office of Civil Rights at HHS found that the policy was a violation of the federal Weldon amendment, a conscience-protection measure, Becerra ignored the matter and pressed ahead in defending the law.
Becerra also led the way in enforcing a state law that required all pro-life pregnancy-resource centers in the state to advertise for California’s free or low-cost abortions. That law was such a blatant violation of free speech that it was overturned by the Supreme Court. He has also led coalitions of blue states in conducting a series of efforts to expand abortion access, attacking red states for enacting pro-life policies, attempting to undo Trump-administration restrictions on funding for abortion providers, and lobbying the federal government to loosen safety regulations on chemical-abortion drugs.
“Today I formally pledge not to prosecute women who obtain abortions if Roe v. Wade is overturned by the U.S. Supreme Court,” Becerra tweeted in mid October. As an attorney general, Becerra must be well aware that judicial changes to Roe couldn’t possibly mandate prosecution of women who obtain abortions. Depending on the Court’s decision, it most likely would return the question of abortion policy to each state. This assertion is, first, an ideological signal of his intense commitment to legal abortion and, second, an effort to willfully stoke public confusion about what would happen if Roe were overturned.
Time and again, Becerra has revealed himself to be a politician with a serious soft spot for pro-abortion zealotry. President-elect Joe Biden stubbornly persists in calling himself pro-life despite no longer articulating support for any meaningful limitations on elective abortion. He has given the impression that his administration will “marshal the forces of decency and the forces of fairness.” But his selection of Becerra signals that Biden is fully prepared to use the executive branch to enforce the Left’s insistence on unlimited abortion.
Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.