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Explainer: HHS rescinds waivers that protect religious freedom

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November 19, 2021

On Nov. 18, the Department of Health and Human Services (HHS), through the Administration for Children and Families (ACF) and Office for Civil Rights (OCR), announced the rescission of waivers issued by the Trump administration that protect the religious freedom and consciences of millions of Americans. Notably, HHS is rescinding waivers given to South Carolina, Texas, and Michigan, including child welfare agencies in those states.

Why does this matter?

This action is deeply troubling for faith-based organizations and people who serve communities in their states according to their religious beliefs. The waivers granted to these states protect the religious freedom of faith-based groups serving vulnerable children. 

We need more organizations serving children in foster care, not less. There are currently 423,997 children in the U.S. foster care system, and that number is likely going to continue to increase due to the COVID-19 pandemic and its affect on families. At a time when children need safe, permanent, and loving homes, the government should be ensuring that more providers can serve.

One of the states whose waiver is being rescinded by HHS is South Carolina, and this action will impact an organization entitled Miracle HIll.

Miracle Hill Waiver

In 2019 under the Trump administration, the Department of Health and Human Services (HHS) announced a religious liberty waiver for South Carolina’s faith-based organizations following a request from South Carolina Gov. McMaster. The governor made the request when one such organization, Miracle Hill Ministries, was in danger of losing its funding because of an Obama-era regulation that applied to all HHS grantees. 

For almost 30 years, Miracle Hill served all foster children of any race, nationality, religious belief, sex, disability, or political belief and was responsible for finding good placements for 15% of the over 4,500 children in the South Carolina foster care system. Miracle Hill is clear that its sincerely held religious beliefs are what motivate their work in caring for the needy and vulnerable. They view their foster care services as direct obedience to the biblical directive to care for vulnerable children.

This waiver, based on the Religious Freedom Restoration Act (RFRA), granted protections for faith-based organizations in South Carolina and allowed them to continue receiving federal funding without compromising their religious principles and convictions.

Fulton v. City of Philadelphia

In June, the Supreme Court unanimously ruled in Fulton v. City of Philadelphia  that faith-based foster care and adoption providers, such as Catholic Social Services in Philadelphia, can continue serving children and families according to their convictions. In the Fulton decision, the court strengthened and clarified the Free Exercise Clause of the First Amendment. 

The basis for the court’s ruling is a clause included in contracts by the City of Philadelphia that give city officials the power to grant certain exemptions. The city government said it has never given out such an exemption and had no intention of providing one to CSS based on their religious beliefs. While the Fulton case set an important precedent for faith-based child welfare providers, there could be lawsuits filed against HHS for this rescission of religious liberty waivers.

Americans have a Constitutional right to religious freedom, and our government must respect the First Amendment and people of faith who serve according to their deeply held religious beliefs.

HHS stated that they would “evaluate religious exemptions and modifications of program requirements on a case-by-case basis.” 

How is the ERLC involved?

Brent Leatherwood, ERLC’s Acting President, stated, 

“These actions not only prevent faith-based child welfare providers from serving vulnerable children in foster care, but they also reveal an animus toward people of faith. Instead of a government that serves the people, these actions show a government willing to target groups for their beliefs. This has the effect of further eroding trust at a time when government institutions can least afford it. Our public square cannot continue to sustain these sorts of reckless and arbitrary changes that are rooted in political ideology, especially those that punish faith-based adoption agencies and religious organizations. Children in need are the ones who end up suffering because of this unending political warfare. That must stop.”

The ERLC is advocating before the administration on behalf of the faith community.  As Leatherwood affirmed, “Every elected official must recognize that religious freedom is a cornerstone of the Constitution. Our government, therefore, has a duty to protect the rights of those who enter the public square with sincerely-held religious beliefs, not assail them. We have communicated our concerns about these moves to the Administration and we will continue advocating on behalf of the faith community on this important matter.”

The ERLC will always promote and defend the human dignity, religious liberty, and conscience rights of all people and religious organizations — within each administration, on Capitol Hill, and throughout the public square. We will continue to work to ensure that vulnerable children in our nation can find safe, permanent, and loving homes.