HHS memo shows department moving to undo Trump-era action aimed at better protecting religious liberty

HHS' internal memo rolling back Trump-era religious liberty protections is expected to be rolled out this week

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FIRST ON FOX: The Health and Human Services Department (HHS) is considering revoking authority the former Trump administration delegated for the Office of Civil Rights (OCR) to prevent violations of religious liberty – prompting concerns about conscience protections under Secretary Xavier Becerra.

A draft memo obtained by Fox News targets two actions related to the First Amendment from earlier this year, and the Religious Freedom Restoration Act (RFRA), which prohibits federal infringements on the free exercise of religion. 

Secretary of Health and Human Services Xavier Becerra answers questions at a Senate Health, Education, Labor, and Pensions Committee hearing to discuss reopening schools during COVID-19 at Capitol Hill on Sep. 30, 2021, in Washington, D.C. (Photo by Greg Nash- Pool/Getty Images)

Secretary of Health and Human Services Xavier Becerra answers questions at a Senate Health, Education, Labor, and Pensions Committee hearing to discuss reopening schools during COVID-19 at Capitol Hill on Sep. 30, 2021, in Washington, D.C. (Photo by Greg Nash- Pool/Getty Images)

The RFRA delegation came on Dec. 7, 2017, in response to the administration's broader efforts to beef up religious liberty protections. Citing President Trump's executive order on the issue, former Attorney General Jeff Sessions provided executive agencies with a long list of guidelines on RFRA, free exercise claims, contraception in insurance plans and other issues. 

HHS followed by granting OCR authority to, among other things, conduct RFRA compliance reviews and "initiate such other actions as may be necessary to facilitate and ensure compliance with RFRA." 

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HHS' internal memo is expected to be rolled out this week, according to a source familiar. It argues that the former administration may have over-expanded OCR's authority and signals intent to repeal Trump-era initiatives. 

The memo is addressed to Becerra and comes from OCR Director Lisa Pino, a political appointee announced in September. A former Obama administration official, she was also appointed an executive deputy commissioner at the New York Department of Health.

HHS did not respond to Fox News' request for comment on the draft of the internal memo.

Mother Loraine Marie Maguire (center) of the Little Sisters of the Poor speaks to the media after arguments at the U.S. Supreme Court, March 23, 2016, in Washington, D.C. (Photo by Mark Wilson/Getty Images)

Mother Loraine Marie Maguire (center) of the Little Sisters of the Poor speaks to the media after arguments at the U.S. Supreme Court, March 23, 2016, in Washington, D.C. (Photo by Mark Wilson/Getty Images)

"Prior to the delegation in 2017, no division was singularly responsible for the Department’s compliance with RFRA or the First Amendment," it reads. 

"That model recognized that all components of HHS had a responsibility for compliance and that OGC [Office of General Counsel] was a central partner in providing key legal advice on RFRA and defending the Department when RFRA claims were raised. Rescinding the delegation to OCR does not lessen 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 memo resurfaces already-raised questions about how OGC and Becerra would address Trump's agenda. During his confirmation hearing, Becerra affirmed that he would protect religious liberty, but his short tenure has prompted criticism on this issue.  

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Roger Severino, who led OCR in the Trump administration, accused Becerra on Tuesday of reneging on pledges he made to Congress.

"HHS centralized authority over religious freedom claims because the laws weren’t being enforced and because that’s how we enforce every other civil right. Without dedicated staff responsible for investigating religious freedom complaints, HHS will return to trampling people’s rights as before — just ask the Little Sisters of the Poor," Severino, who is a senior fellow at the Ethics and Public Policy Center, told Fox News.

"Because Becerra was twice found to have violated conscience protection laws by OCR, he has no business deciding its religious freedom authorities given his massive conflict of interest," he added. "Becerra told Congress that he values religious freedom and that nothing will change with OCR concerning enforcement. His actions since then prove that he lied and this move would put an exclamation point on his anti-religious hostility."

Severino was referring to comments Becerra made during his confirmation hearing.

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Another former HHS official, who spoke on the condition of anonymity, similarly commented: "In the past, HHS trampled the rights of religious organizations like the Little Sisters of the Poor by forcing them to provide insurance coverage for contraceptives against their religious convictions. … Revoking OCR’s authority to enforce RFRA within HHS is another step in dismantling safeguards within the federal government for people of faith."

Signaling repeal of Trump-era moves on gender and sexuality 

OCR, in particular, played a key role in the Trump administration's efforts to rein in purported conscience violations – including by Becerra, who served as California's attorney general. Becerra, who identifies as Catholic, has come under fire for suing the Little Sisters in their fight against Obamacare's contraception mandate. 

Prior to entering the Biden administration, Severino's OCR determined that under Becerra's leadership, California violated conscience protections related to abortion in Medicaid and insurance coverage. Becerra's HHS later vacated the Medicaid ruling and withdrew Severino's referral to DOJ over a Vermont nurse allegedly being forced to participate in an abortion.

HHS' recent memo indicates that the new rule would also help reverse Trump-era protections related to gender and sexuality. 

LGBT pro-democracy protesters carry a rainbow flag during a demonstration. (Photo by Chaiwat Subprasom/SOPA Images/LightRocket via Getty Images)

LGBT pro-democracy protesters carry a rainbow flag during a demonstration. (Photo by Chaiwat Subprasom/SOPA Images/LightRocket via Getty Images)

Under "Noteworthy Elements about Equity," the memo reads: "While nothing in RFRA legally restricts an agency to work proactively to address a complainant’s (or ‘would be’ complainant’s) religious needs or rights, there is a serious concern that such an approach broadens the effect of RFRA in a way that may not be legally required and while causing significant detriment to civil rights and public health protections." 

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It argues that "the prior Administration took an expansive view of the use of RFRA that resulted in negative impacts for underserved communities."

The draft specifically calls out "broad-based exemptions from nondiscrimination requirements to child welfare agencies challenges the ability of children and youth to obtain safe and loving foster and adoptive homes."  

"It also clearly sent the signal to LGBTQ+ communities that the Department did not recognize their civil rights, including the right to marry," the draft reads.

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"While the Department will need to continue to comply with RFRA, removing this delegation demonstrates our belief that RFRA is meant to be a shield to protect the freedom of religion, not a sword to impose religious beliefs on others without regard for third party harms, including civil rights."