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. When HHS published the first version of the mandate, the religious exemption in it was so narrow that not even Jesus’s 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 a case called Zubik v. Burwell, which included among the challengers the Little Sisters of the Poor—an order of elderly nuns, being forced by the government to cover contraceptives. 

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 now plans to revisit.   

During his presidential campaign, President Biden promised to restore the Obama Administration’s contraceptive mandate. But it is past time for the government to leave Catholic dioceses and other religious organizations like the Little Sisters alone, and stop trying to force us to violate our beliefs. 

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, available here. 

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. In fact, HHS is currently fighting court rulings that held that HHS violated religious freedom laws the last time they tried to impose this mandate. 

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, the U.S. Department of Education (USDE) officially published its notice of proposed rulemaking (NPRM) for its Title IX regulations, available here. 

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 NPRM is that it would not revise the existing provisions in USDE's regulations that govern religious exemptions to Title IX. 

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 2021 Grants Rule still had not gone into effect by the time of President Biden’s inauguration, so HHS was able to defer the rule’s effective date, and the court hearing the legal challenge to the rule then entered a stay to further impede the rule’s implementation. That stay has been extended numerous times and remains in effect. In November of 2021, HHS revoked the waivers granted to South Carolina, Michigan, and Texas. However, the litigation against the notice of non-enforcement of the Grants Rule never resulted in the court striking it down, so while the 2016 Grants Rule is still officially on the books, HHS is still officially not enforcing it.  

Catholic charities serve everyone in need—no one is turned away because of their asserted sexual orientation or gender identity, or any other characteristic. Reinstating the 2016 regulation 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 don’t want to be forced to violate their beliefs. 

Advocacy

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. 

USDE might also revise the RLFI regulations to make it harder for religious schools to claim a religious exemption under Title IX, by narrowing USDE's interpretation of what it means for a school to be "controlled by a religious organization." For instance, nondenominational religious schools and religious schools controlled by boards (instead of by, for example, the local bishop) could be considered ineligible for Title IX's religious exemption. Without the exemption, those schools would be subject to the USDE’s new requirements on sexual orientation and gender identity

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 Conscience Rule was immediately challenged in court, and HHS was enjoined from enforcing any part of the rule. Nonetheless, taking the position that it was enforcing the statutes rather than the Conscience Rule itself, HHS OCR notified California that it had violated the Weldon Amendment by requiring objecting employers to cover abortion in their health plans, and took action against the University of Vermont Medical Center for forcing an objecting nurse to assist in an elective abortion.  

Under the current administration, HHS OCR withdrew its finding that California had violated the Weldon Amendment, and the Department of Justice voluntarily dismissed its case against the University of Vermont Medical Center. This sent a clear signal that HHS does not intend on enforcing protections for health care workers’ consciences, leaving them without recourse. Now HHS is planning on rescinding the Trump Administration’s Conscience Rule too. 

Advocacy

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  

The planned revisions will likely revert to the previous language on these provisions, reflecting a misguided view that religious charities are somehow second-class, and that special arrangements need to be made for beneficiaries who are offended by religion.

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