Do No Harm

More Mandates? Part II
Should health care workers be mandated to perform gender transition procedures? Abortions? Lauren McCormack, Robert Vega, and Dan Balserak talk with Mary and Aaron about new, concerning regulations and legislation and the Church's role in promoting life, marriage, and religious freedom.

More Mandates?
Ten years ago, the HHS contraceptive mandate provoked widespread concern about threats to religious liberty. Today, federal agencies are poised to issue 7 regulations that would seriously harm human life and religious freedom. USCCB Religious Liberty Director, Dan Balserak, joins the podcast to talk about these regulations and what we can do about them.

U.S. Bishops' Religious Liberty Chairman Expresses Concern over Proposed Revision on Conscience Rule
December 30, 2022

America Magazine: Cardinal Blase Cupich and Cardinal Timothy Dolan Urge HHS to Reconsider Its Misguided Mandate
September 26, 2022

Bishop Chairmen Condemn Harmful Regulations Forcing Gender Ideology and Potentially Abortion on Health Care Workers and Religious Hospitals
July 27, 2022

U.S. Bishop Chairmen Express Concern with U.S. Department of Education’s Proposed Revisions to the Title IX Regulations
June 29, 2022

The U.S. Department of Health and Humans Services’ (HHS) contraceptive mandate has a long and tortured history. At bottom, the controversy has been over whether employers that believe that contraception, sterilization, and aborting-inducing drugs are wrong can be forced to facilitate their use through the health insurance plans they provide for their employees.

When HHS published the first version of the mandate, the religious exemption in it was so narrow that not even Jesus’ ministry would have qualified. Eventually HHS devised an “accommodation” that forced religious employers to deputize their health plan administrators to deliver contraception, abortion-inducing drugs, and sterilization procedures to the religious organization’s employees. Lawsuits challenging the mandate went up to the Supreme Court in Zubik v. Burwell, a case that included among the challengers the Little Sisters of the Poor—a religious institute of women religious who provide nursing care for the elderly poor, being forced by the government to cover contraceptives in their health care plan.

The Supreme Court in Zubik v. Burwell did not resolve the question of whether the so-called “accommodation” for religiously objecting employers violated the Religious Freedom Restoration Act, a federal law that protects religious freedom. Instead, the Court sent the challengers’ cases to the circuit courts with instructions to give the federal government and the challengers time to find a compromise. No compromise was found. 

The Trump Administration inherited the regulations and revised them to add outright exemptions for employers with religious or moral objections. Those revisions were also litigated up to the Supreme Court, which upheld them as valid exercises of HHS’s regulatory authority but declined to rule on whether they are required by law. It is those revisions—the religious and moral exemptions to the requirement to cover contraceptives in employer health plans—that HHS has now proposed to revise once again.

The new proposed contraceptive mandate regulations from HHS appear to finally relieve religious employers of any requirement to be involved in the provision of contraceptives, sterilization procedures, and abortion-inducing drugs. The proposal identifies a way for employees of religious employers to obtain those things without the employers’ involvement. It is notable that, in defending the original contraceptive mandate over the course of nearly a decade, HHS argued that no such way was possible.

There are nonetheless concerns about the proposal. First, for no coherent reason, it eliminates the Trump-era regulations’ exemption for employers with non-religious, moral objections to the mandate. Second, the preamble to the proposed rule suggests that HHS might still change its position and require any third party assisting a religious employer with administration of its health plan to ensure that the religious employer’s employees can receive contraception through the plan—effectively rendering the employers’ exemption meaningless.

Advocacy

Comments on Proposed Contraceptive Mandate Regulations
March 2023

Comments on Moral Exemptions From Contraceptive Mandate
November 2017

Comments on Religious Exemptions From Contraceptive Mandate
November 2017

Comments to HHS on Coverage for Contraceptives
September 2016

Comments on Interim Final Rules on Coverage of Certain Preventive Services Under the Affordable Care Act
October 2014

Comments on Proposed Rules on Coverage of Certain Preventive Services Under the Affordable Care Act
October 2014

Comments on Notice of Proposed Rulemaking on Preventive Services
March 2013

Comments on Advance Notice of Proposed Rulemaking on Preventive Services
May 2012

Comments on Interim Final Rules Imposing Contraceptive Mandate
August 2011

Comments on Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act
September 2010

Section 1557 is the nondiscrimination provision of the Affordable Care Act. It incorporates various federal nondiscrimination statutes by reference, including the prohibition on sex discrimination in Title IX of the Education Amendments of 1972.

On August 4, 2022, the U.S. Department of Health and Human Services (HHS) officially published its notice of proposed rulemaking (NPRM) for its Section 1557 regulations and has stated in court filings that it intends to publish the final version in early 2024. 

The clearest and most direct consequence of the HHS's proposed Section 1557 rule is that it would be considered discrimination for a health care worker to categorically object to performing gender transition procedures, regardless of whether that objection is a matter of religious belief or clinical judgment. The regulations would define the covered recipients of "federal financial assistance" very broadly, so that many if not most health care workers and health care organizations would be subject to their mandates. 

The proposed regulations would not apply directly to the employment practices or health benefit programs of organizations engaged in health care. However, it would apply to health insurance issuers that receive "federal financial assistance" from HHS, so the regulations may make it difficult for religious organizations as employers to find companies who will provide insurance coverage that is consistent with their religious beliefs.

The issue of how the regulations will address abortion is a major concern. The text of the proposed rule is unclear about what requirements it will impose with regard to abortion. Its preamble, however, suggests that at least some such requirements are possible (such as a prohibition on discrimination on the basis that a person has received or is seeking an abortion), and requests public comment on whether an abortion neutrality provision in Title IX applies to Section 1557. This creates room for HHS to adopt more expansive abortion requirements in the final rule—potentially even a mandate to perform abortions.

Although the proposed regulations would invite health care workers or organizations to notify HHS of their view that existing legal protections for conscience and religious freedom exempt them from particular requirements, the regulations offer no guarantee that HHS would ever agree that anyone has the right to follow their beliefs or convictions.  

The window for public comment opened on August 4, when the NPRM was officially published in the Federal Register, and will close October 3, 2022. Sign up here to receive an alert to file your own comments with HHS. 

Advocacy

Comments on Proposed Regulations Relating to Nondiscrimination in Health Programs
September 2022

Letter to HHS on Religious Liberty in Section 1557 of the Affordable Care Act
March 11, 2022

Comments on Proposed HHS Regulations on Nondiscrimination in Federally Funded Health Programs and Activities
August 2019

Comments on Proposed HHS Regulations on Nondiscrimination in Federally Funded Health Programs and Activities
November 2015

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance. The Title IX statute includes a provision exempting any educational institution controlled by a religious organization from the statute’s requirements to the extent they conflict with the organization’s religious tenets. The U.S. Department of Education (USDE) has regulations that interpret and implement these provisions of Title IX statute, with legally binding effect on covered schools and other organizations engaged in education. 

On July 12, 2022, the U.S. Department of Education (USDE) officially published its notice of proposed rulemaking (NPRM) for its Title IX regulations. 

The Title IX NPRM would revise the concept of "discrimination on the basis of sex" to include "sexual orientation" and "gender identity." While covered schools would be allowed to have sex-separate activities and facilities for certain purposes, they would generally be required to let students participate in activities and access facilities according to their asserted gender identity. Although these requirements have many consequences for the day-to-day operations of schools, the NPRM offers very little in the way of practical guidance on what covered schools would need to do to comply.  

The definition of "discrimination on the basis of sex" would also include the basis of "pregnancy or related conditions," which itself would be defined to include "termination of pregnancy." This has potential implications involving abortion, but the NPRM offers no insight into what those implications might be. 

An unexpected and positive aspect of the proposed rule was that it would not revise the existing provisions in USDE's regulations that interpret the religious exemption in Title IX. However, that exemption applies only to religious schools, not to individuals who have religious beliefs that the regulations would infringe. For example, the exemption would not protect a public school teacher who acts in accordance with her religious belief that people cannot change their sex.

Advocacy

Comments on Proposed Rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
September 2022

Comments on Religious Exemption and Meaning of “Sex” in Title IX 
June 2021

Comments on Notice of Proposed Rulemaking on Discrimination on the Basis of Sex
March 2015

The so-called HHS Grants Rule is a particular provision embedded within the sprawling regulations that govern grants, contracts, and other financial assistance from the U.S. Department of Health and Human Services (HHS). Late in the Obama Administration in 2016, with little fanfare, HHS added provisions prohibiting recipients of such funding from discriminating on the basis of religion, sexual orientation, and gender identity, and requiring recipients to treat same-sex civil marriages as valid in keeping with the Supreme Court’s decisions in U.S. v. Windsor and Obergefell v. Hodges. These two paragraphs in the Code of Federal Regulations became known as the "Grants Rule." 

The Grants Rule would force charities that believe in traditional marriage as part of their religious beliefs to place children with same-sex couples.  It would also force faith-based charities providing emergency housing or homeless shelters to allow biological men—if they prefer a female gender identity—to be housed with women in the shelter (or a biological woman to be housed with men). 

Under the Trump Administration, HHS issued a notice that it would not enforce the Grants Rule on the grounds that the 2016 regulation was, essentially, procedurally deficient, for having not properly engaged in a particular analysis required by law. Then, in early January of 2021, HHS revised the Grants Rule, replacing the list of nondiscrimination requirements with a more general provision requiring recipients to abide by applicable federal civil rights law, and a provision stating that HHS would follow all applicable Supreme Court rulings. The revisions were also immediately challenged in court.  

The new proposed Grants Rule from HHS is a slightly scaled-back version of the 2016 rule.  Instead of imposing a prohibition on “sexual orientation and gender identity” discrimination on all funds from HHS, it imposes such a prohibition on any funds from HHS that are governed by a statute that prohibits sex discrimination, arguing that the Supreme Court’s decision in Bostock v. Clayton County, Georgia, means that any sex discrimination law also prohibits “sexual orientation and gender identity” discrimination. In essence, HHS is acknowledging that the 2016 rule exceeded HHS’s statutory authority, but is pursuing the same substantive goal.

Catholic health and social service organizations either already receive funding or may plausibly seek funding under virtually every statute subject to the proposed rule. Their operation of these charitable ministries presents numerous fact-patterns that could create conflicts between the proposed rule’s requirements and Catholic teaching. 
For example, Catholic charitable agencies provide emergency shelter for victims of domestic violence. Some of those shelters are single-sex facilities for women, in order to offer an environment that is as safe and comfortable as possible for women who have been abused by men. Instead of offering agencies that operate these shelters flexibility to respond to the unique circumstances and needs of those in their care, the proposed rule would arguably mandate them to house biological men who identify as women in single-sex facilities. Catholic charitable agencies will continue endeavoring to meet the needs of all who come to their doors and should be allowed the flexibility to provide shelter in a way that best serves those in their care and honors their Catholic beliefs, which include both the call to shelter those in need and the recognition of the immutable difference between, and dignity of, men and women. 
Similar situations may arise in the context of the placement of unaccompanied migrant children (UC) and unaccompanied refugee minors (URMs). A UC or URM who identifies as the opposite of his or her biological sex may be referred for placement in a shelter designated for children of the child’s non-biological sex. The proposed rule could require Catholic agencies serving UC and URMs to accept that referral, even when appropriate accommodations cannot be made, and thereby endorse a view of human embodiment and sexual difference contrary to Catholic teaching. 
Catholic charities serve everyone in need—no one is turned away because of their self-determined “sexual orientation or gender identity,” or any other characteristic. The proposed rule could drive Catholic charities and other religious organizations out of service to their communities not because they want to be able to discriminate, but because they do not want to be forced to violate their beliefs.

Advocacy

Comments on Proposed HHS Grants Rule
September 2023

Comments on Proposed HHS Grants Regulation
November 2019

The Religious Liberty & Free Inquiry Rule from the U.S. Department of Education (USDE) is a patchwork of regulatory provisions related to freedom of speech and religion in education. The rule:  

• Requires public universities that receive certain grants from USDE to:
  • Comply with the First Amendment  
  • Treat faith-based student organizations equally with secular student organizations (known as the "Equal Campus Access" provisions)  
• Requires private universities that receive certain grants from USDE to comply with their own stated policies on freedom of speech  
• Amended USDE’s Title IX regulations to clarify, and set out an expansive understanding of, how a religious school can establish that it is “controlled by a religious organization,” which is an element of claiming the religious exemption in Title IX  
• In the context of Hispanic-serving schools and Historically Black Colleges and Universities, strengthened First Amendment protections for schools and departments of divinity  

At the heart of the Equal Campus Access provisions is the freedom of faith-based student groups to require their members and leaders to subscribe to the tenets of the faith. Without this freedom, student faith groups cannot maintain their religious identity. USDE’s revisions to the RLFI regulations are expected to restrict this freedom. 

In February of 2023, USDE issued a proposal to rescind the ECA provisions.  The justifications offered for the proposal are thin, focusing mainly on purported confusion among public universities about how to apply the ECA provisions. What is clear is that, if the rescission of the ECA provisions is finalized, student faith groups will be especially vulnerable to discrimination by their school administrations. 

Advocacy

Comments on Proposed Rescission of USDE Equal Campus Access Provisions
March 2023

Letter to Secretary Cardona in support of 34 C.F.R. 75.500(d)
September 23, 2021

Letter to Secretary Cardona in support of 34 C.F.R. 75.500(d)
June 1, 2021

Numerous federal laws protect the right of organizations and individuals engaged in health care to follow their conscience. Chief among those statutes are the Weldon Amendment, prohibiting discrimination against individuals and entities that do not provide, cover, pay for, or refer for abortions; the Church Amendments, protecting religious and moral objections to abortions, sterilizations, and in some cases any other religious or moral objection (such as to gender identity interventions); and the Coats-Snowe Amendment, protecting religious and moral objections to abortion in medical school and training programs. Courts have held that these statutes do not authorize a private right of action, meaning that health care workers cannot go to court to enforce their own rights under the statutes. The only way they can be enforced is by the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR).

In 2008, for the first time, HHS promulgated a regulation to clarify the meaning of Weldon, Church, and Coats-Snowe and to establish mechanisms for their enforcement.  However, in 2009, the Obama Administration rescinded that regulation, replacing it with a single paragraph stating that HHS OCR is authorized to receive complaints under those statutes.

Under the Trump Administration, HHS went further than the 2008 rule, publishing a regulation known as the Conscience Rule that implemented not only Weldon, Church, and Coats-Snowe, but over a dozen other federal conscience statutes.  The rule had two main parts: a set of definitions for terms used in the statutes, in order to ensure that the statutes are properly understood to provide broad protections for conscience rights; and a set of provisions that gave HHS the tools necessary to enforce the statutes effectively, such as a requirement that entities under investigation for violating conscience rights must respond to HHS’s requests for information. The Conscience Rule was immediately challenged in court and was struck down in its entirety. 

The new proposed Conscience Rule has positive and negative aspects. On the one hand, it retains reference to all of the statutes implemented under the Trump-era rule, and still provides mechanisms for enforcement, albeit less robust than before. It also notes that protecting conscience rights benefits liberty, human dignity, and the medical profession. On the other hand, it does not define any of the statutes’ terms, thus offering no guidance on what the statutes mean; its enforcement mechanisms have significant gaps; and it appears to suggest that conscience rights can be overridden by a patient’s desire to receive a particular procedure. 

Advocacy

Comment to OMB on Proposed HHS Conscience Regulations
September 2023

Comments on Proposed HHS Conscience Regulations
March 2023

Comments on Proposed HHS Conscience Regulations
March 2018

Comments on Proposed Rescission of HHS Conscience Regulation
March 2009

Comments on Proposed HHS Regulations Protecting the Rights of Conscience of Health Care Professionals and Institutions
September 2008

The Equal Treatment for Faith-Based Organizations regulations were first promulgated in the first term of the George W. Bush Administration and have been the subject of back-and-forth revisions by successive administrations. The currently planned revisions would be a joint rulemaking across nine federal agencies, helmed by the Department of Justice, setting out each agency’s separate but mostly identical protections and conditions for faith-based organizations’ participation in federally funded social service programs.   

Throughout their various iterations, the Equal Treatment regulations have stood for the basic proposition that faith-based social service providers must be eligible for federal awards on equal terms as secular providers. The disagreement has been about what that equality looks like. When HHS revised its Equal Treatment regulations in 2020 to better facilitate faith-based organizations’ involvement, it made a few main changes to the previous regulations:  

• Eliminated the requirement that faith-based providers receiving direct federal financial assistance (generally, grants or contracts) must   
  • Refer beneficiaries to secular service providers upon request, and  
  • Post a notice to beneficiaries about their rights vis a vis the religious nature of the service provider  
• Removed the condition that there must be a secular provider nearby for a faith-based provider receiving indirect federal financial assistance (e.g., vouchers) to be able to engage in “explicitly religious activities” (e.g., worship) as part of the funded program  

Part of the disagreement has been about what that equality looks like. When HHS revised its Equal Treatment regulations in 2020 to better facilitate faith-based organizations’ involvement, it made a few main changes to the previous regulations, aimed at removing requirements that the regulations imposed only on faith-based providers but not secular providers (such as an obligation to refer beneficiaries to a secular provider upon request, even though secular providers bore no obligation to refer beneficiaries to religious providers upon request). With some tinkering around the edges, the new proposed rule would generally reinstate those requirements.

Another area of disagreement has been on the right of religious providers who receive federal awards to ensure that their employees are faithful to the providers’ religious beliefs. The proposed rule would reinstate a restrictive view of the scope of the Title VII religious exemption – under the proposal, providers would only be protected in cases where they prefer to hire individuals of the same religion, and not in cases where employment decisions motivated by the providers’ religious beliefs are characterized as discrimination on the basis of another protected class, like sex. 

Advocacy

Comments on Proposed DOE Equal Treatment Regulations
February 2020

Comments on Proposed HHS Equal Treatment Regulations
February 2020

Comments on Proposed Equal Treatment Regulations of Various Federal Agencies
February 2020