Biden’s Pick for HHS Secretary Could Threaten Important Religious Liberty Gains

December 18, 2020
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by Justin Butterfield • 5 min read

Recently, President-elect Joe Biden announced he would appoint California Attorney General Xavier Becerra to lead the U.S. Department of Health and Human Services (HHS).

To provide context on the importance of this Cabinet position to religious freedom, consider that the HHS Conscience and Religious Freedom Division issued its first ever Notice of Violation for a state’s violating federal protections for rights of conscience and religious freedom to the State of California in January of 2019.

By that Notice of Violation, HHS announced its findings that California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the “FACT Act”) violated the Weldon Amendment and the Coats-Snowe Amendment, both of which prohibit states from discriminating against health care entities because of their refusal to refer for abortions. The FACT Act required certain pro-life pregnancy resource centers—many of which are faith-based organizations—to advertise that California provides free or low-cost abortions and information on how to acquire those abortions. For pro-life pregnancy resource centers that refuse to provide information on how to get a free or low-cost abortion, the FACT Act demanded fines of up to $1,000 per offense.

Defending such an ignominious law against both HHS’s Notice of Violation and a federal lawsuit was AG Becerra. Unfortunately, the attempt to force pregnancy resource centers to help people get abortions is only one battle in Becerra’s long war against religious freedom.

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In addition to his Supreme Court fight—and loss—on the FACT Act in NIFLA v. Becerra, Becerra also sued an order of nuns—the Little Sisters of the Poor—to force them to provide insurance coverage for contraceptives to which the nuns held religious objections. Becerra filed his lawsuit against the Little Sisters of the Poor after the faith-based organization had already won a similar case at the Supreme Court. Becerra believed that a new lawsuit against this besieged group of nuns would allow him to overthrow federal religious freedom protections that the Trump administration had issued after the Little Sisters’ previous Supreme Court victory.

But Attorney General Becerra has not just attacked nuns and pro-life organizations in his assault on religious freedom. Attorney General Becerra has also fought against churches’ rights to religious freedom.

When Skyline Wesleyan Church in La Mesa, California, and a Catholic mission, Missionary Guadalupanas of the Holy Spirit, objected to California’s law requiring churches to pay for elective abortion coverage, the HHS Conscience and Religious Freedom Division again issued a Notice of Violation to California for the state’s trampling over federal religious freedom protections.

Again, fighting his war against religious freedom in health care, Attorney General Becerra defended California’s policy of demanding that churches cover elective abortions.

Now, Attorney General Becerra is leading a coalition of California, North Carolina, Maine, and Washington State in attacking HHS’s regulatory authority to enforce federal health care conscience and religious freedom protections for health care professionals. This authority allows HHS to protect doctors, nurses, pharmacists, and other health care professionals from being coerced into violating their deepest religious convictions—convictions that often led them to serve in the health care field in the first place. This enforcement authority gives effect to the conscience and religious freedom protections established by Congress—protections such as the Weldon Amendment, which prohibits discrimination against health care organizations and professionals that refuse to provide, pay for, provide coverage of, or refer for abortions. Yet Becerra describes these protections as “dangerous” and “unlawful.”

Putting Attorney General Becerra in charge of the Department of Health and Human Services—in charge of enforcing federal religious liberty protections for health care—would be putting the wolf in charge of the chicken coop.

As California’s Attorney General, Becerra has orchestrated the war against religious freedom for health care providers. As the head of HHS, Becerra would be in a position to ensure that health care professionals who will not sacrifice their religious convictions must instead sacrifice their profession.

While this approach to religious freedom is an affront to the millions of Americans who respect and value faith, it is especially dangerous now, when we need doctors and nurses on the front lines, serving the underserved, instead of driving them away and telling them that their services to our communities are not wanted.

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