A memo from Lisa Pino, Director of the Office of Civil Rights (OCR) to Xavier Becerra, Secretary of the Department of Health and Human Services (HHS) reveals a plan by the Biden administration to limit religious freedom protections. The memo reads, in part: “OCR recommends that the Secretary sign the attached Federal Register Notice rescinding a prior delegation to OCR under the previous Administration for the Religious Freedom Restoration Act (RFRA) and the First Amendment to the U.S. Constitution.”
Under the Trump administration, HHS granted OCR authority to enforce the RFRA and the First Amendment, an authority that previously had not been granted to any particular HHS agency, each agency sharing the responsibility for enforcing the RFRA and complaints against religious liberty as protected by the Constitution. The OCR wants to no longer have that singular responsibility but wants to hand it back to each agency. The concern, of course, is that everybody’s dog is nobody’s dog. The memo claims that, “Rescinding the delegation to OCR does not lesson the commitment of the Department to compliance, but ensures that it is not misused by any one agency to enact a broad, proactive agenda.” The “broad, proactive agenda” of which the OCR is wary is the one they regard as limiting the expansion of abortion and LGTBQ+ rights against those of religious believers.
Senator James Lankford (R-OK) was critical of the memo and of the Biden administration’s lack of enthusiasm for protecting religious liberty. Lankford said, “Americans do not support President Biden and his team’s absolute lawlessness when it comes to upholding Americans’ Constitutional rights — including our right to freely live our faith. … We, as Americans, do not discriminate against people of faith. This move by Secretary Becerra shows he will not keep the commitment to protect religious freedom for every American that he made during his confirmation hearing.”
Secretary Becerra is a fierce proponent of abortion against those who claim religious exemptions from having to perform the procedure or to cooperate in the procedure being performed or paid for. When Becerra was Attorney General of California, he sued the Little Sisters of the Poor, attempting to force them to provide contraceptives and abortion-inducing drugs in their healthcare plan. A controversial nominee, he was confirmed as HHS Secretary by a vote of 50-49 in the Senate.
Another area of concern regarding religious liberty is President Biden’s attack on the religious integrity of Catholic hospitals and healthcare providers. Shortly after becoming president, Biden issued an executive order declaring that his administration would apply the decision of the U.S. Supreme Court in Bostock v. Clay County (2020) that discrimination based on sex as outlawed in Title VII of the Civil Rights Act of 1964 applied to gay and transgender persons. Biden’s interpretation of this is that Catholic hospitals and healthcare workers must provide gender transition surgery and other therapies to any patient, regardless of any moral or medical objections.
A suit was filed in August in U.S. District Court for the Eastern District of Tennessee in Chattanooga by Alliance Defending Freedom challenging the mandate. The suit has been joined by the Catholic Medical Association, by the American College of Pediatricians, and by Dr. Jeanie Dassow, a Tennessee OB-GYN who specializes in the care of adolescents. In their suit, Alliance Defending Freedom argues that HHS has interpreted Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination based on sex, “to include gender identity and thus require gender-transition interventions, services, surgeries, and drugs on demand, even for children, no matter a doctor’s medical judgment, religious beliefs or conscientious objection.” Hospitals and healthcare workers who refuse to comply could face charges of discrimination.
Last January, the U.S. District Court for the District of North Dakota in Fargo blocked the transgender mandate, ruling on behalf of Franciscan Alliance/Franciscan Health and the Christian Medical and Dental Associations. Texas, Kansas, Kentucky, Nebraska and Wisconsin all joined the lawsuit. The Biden administration has appealed that ruling.
In August, a U.S. District Court for the Northern District of Texas in Wichita Falls also blocked the transgender mandate, ruling on behalf of Franciscan Alliance/Franciscan Health. In that ruling, Judge Reed O’Connor wrote, “The Christian plaintiffs contend that violation of their statutory rights under RFRA is irreparable harm. The court agrees, and concludes that enforcement of the 2021 interpretation (of Section 1557) forces Christian plaintiffs to face civil penalties or to perform gender-transition procedures and abortions contrary to their religious beliefs — a quintessential irreparable injury.”
The Biden administration is not giving up, however. Rulings that have blocked Biden’s mandate have revealed filings by HHS where they informed the U.S. District Court for the District of Columbia of its intention to adopt new regulations that would require hospitals and healthcare workers to provide for transgender therapies and abortions, as well as fertility treatments and end-of-life therapies inconsistent with Catholic teaching. The new regulations being developed are in response to a lawsuit filed by Whitman-Walker Clinic, a non-profit clinic in Washington, DC that focuses on the LGTBQ+ community demanding that the Biden administration adopt regulations that interpret the ACA’s Section 1557 to apply to gay and transgender persons without religious exemptions, and complaining that it was taking them too long to do so. Whitman-Walker is part of a coalition of organizations, including Planned Parenthood, the Southern Poverty Law Center, the Center for American Progress, and the Human Rights Campaign, coordinated by the Leadership Conference of Civil and Human Rights, that is working with Becerra’s HHS to adopt the new regulations.
The Leadership Conference wrote a June 8, 2021 memorandum, not only detailing how the HHS should revise the regulations to include an interpretation of ACA’s Section 1557 according to Bostock v. Clay County, but also that the HHS should develop regulations in such a way as to negate religious exemptions and permanent injunctions won through litigation by Catholic entities, including the Catholic Benefits Association (CBA), Franciscan Alliance/Franciscan Health, and the Religious Sisters of Mercy. The Leadership Conference memorandum states, “Religious exemptions have serious and harmful implications. They were thought of as a way to preserve religious freedom and independence. However, they often come at a societal cost that can impact other community members. Impacts of a religious exemption cannot be siloed from other areas of society.” In other words, if your religious liberty gets in the way of someone else’s desire for a particular medical procedure, regardless of its nature, your religious liberty must be sacrificed.
Doug Wilson, CEO of the CBA, said that, if the demands of the Leadership Conference were implemented, “it would effectively remove all religious considerations from issues around life, family, marriage, the very nature of men and women. … There’s no hiding from this.” Wilson said that the demands of the Leadership Conference, “would place Catholic health-care providers in an untenable position.” Catholic hospitals would be forced to choose between staying open or violating their integrity as Catholic institutions.
Archbishop William Lori of Baltimore is the chair of the CBA board. In response to the Leadership Conference memo, Archbishop Lori said, “I am very concerned that such rulemaking is now in process. I think it is important that dioceses, religious orders and Catholic apostolates of all kinds be aware early on this is coming down the track. And it is not simply about covering things in our insurance plans, objectionable as that is, but it’s also about the providing of services, particularly on the part of our health-care ministries.” Archbishop Lori went on to say, “When you attack the very idea of religious freedom, as contrary to the First Amendment, you’re really putting everybody’s freedom at risk. Freedom of speech and freedom of assembly, all these fundamental freedoms, really travel together. … It’s a very serious thing, and even people who disagree with the Church’s teaching in these various matters should be concerned.”
President Biden is proving to be the Chief Executive most hostile to religious liberty in the history of the nation. No other president, to my knowledge, has so brazenly and directly attacked the freedom of religion, the first freedom enumerated in the Bill of Rights. Biden’s interpretation of religious liberty is so limited that it essentially means that an individual is free only to believe what he or she wants to believe, but that such beliefs cannot in any way, shape, or form inspire an individual’s or an institution’s actions in society. Rather, once a person leaves the confines of home or church, he or she is bound to act according to the priorities set by the government. If the government can mandate how people are to act in society even to the point where they are mandated to act counter to their most deeply held principles and beliefs, then the government is in the business of establishing religion. No one in the history of humankind has ever ventured a definition of religion limited to what a person holds in his or her mind alone. Faith finding expression in action is the foundation of religious principles. Without it, religion means nothing. Yet, this is the position our “devout Catholic” president holds and is attempting to force on all citizens. Amazing that this is the same man who claims that he supports abortion rights because he does not feel that he can impose his religious beliefs on those who believe differently. That is precisely what he hopes to do with the transgender mandate and the newly developing HHS regulations.
If the Biden administration is allowed to succeed in this plan, there will be no Catholic institutions of any meaning. Eventually, the government will likely seek to expand its control even over the parish and chancery. The Church will be forced out of the public square and, perhaps, even to the underground. Yes, of course, there will be those who compromise, who insist that the restrictions of the government, or the control by the government of religious institutions, is hardly a matter over which to sacrifice the much-needed “ministries” and “pastoral care” provided by the Church. Why fuss over abortion and transgender surgeries when there are people who require treatment for cancer and heart disease? To deny these people would be inhumane and “un-Catholic.” There will be plenty of Catholic hospitals that remain in business, though they will be Catholic in name only, having surrendered any meaningful semblance of their Catholic identity to the government.
But there will be a remnant of the faithful. God has promised it. In his Letter to the Romans, St. Paul writes: “I ask, then, has God rejected his people? Of course not! For I too am an Israelite, a descendant of Abraham, of the tribe of Benjamin. God has not rejected his people whom he foreknew. Do you not know what the scripture says about Elijah, how he pleads with God against Israel? ‘Lord, they have killed your prophets, they have torn down your altars, and I alone am left, and they are seeking my life.’ but what is God’s response to him? ‘I have left for myself seven thousand men who have not knelt to Baal.’ So also at the present time there is a remnant, chosen by grace” (Rm 11:1-5).
In this world we must work to transform our society according to the vision of the gospel. As Christians, it is our duty to do so. As Americans, it is our right to try. So, let’s try. Contact your senators and representative and communicate your concerns and find out where they stand. Contact the OCR director and HHS secretary and communicate your opposition. Contact your bishop and communicate your support. Pray for Biden and Becerra. Love your enemies by praying for them. Pray that judges make the right decisions, and that those on the front lines representing the Church in the courts are granted wisdom and insight to argue well and successfully.
But if we lose — and we may — we must not surrender the faith. Regardless of the consequences, we must not abandon the right, or try to turn wrong into right by moral machinations. We must remain faithful to what is true and holy. Jesus told us straightforwardly, “In the world you will have trouble, but take courage, I have conquered the world” (Jn 16:33). The promise is not that Christ will be victorious. The promise is that Christ already is.
Be Christ for all. Bring Christ to all. See Christ in all.