Explainer: New federal regulation would protect faith-based adoption and coster-care

November 1, 2019

What just happened?

The Department of Health and Human Services (HHS) proposed a new regulation on Friday, Nov. 1 that will help ensure faith-based organizations can continue serving vulnerable children and families through foster-care and adoption services.

Commenting on the proposed rule, ERLC President Russell Moore said:

“This new regulation from the Trump administration is a welcome signal that the child-welfare system is about the welfare of children—not proxy culture wars. The previous administration’s policy change excluded faith-based organizations with convictions about the need for a child to have both a mother and a father. The children in our foster system are facing a crisis, as tens of thousands age out of the program each year. Every American ought to be able to come together to solve this problem. Today’s move is a good start in that direction.”

Why is the rule needed?

Before leaving office in January 2017, President Obama implemented a policy prohibiting discrimination on the basis of sexual orientation among federal grantees. As a result of the rule, religious-based child welfare providers, such as adoption agencies, were required to abandon their deeply held religious beliefs in order to continue receiving federal funding for their services.

A collective effort from public servants, law firms, and advocacy groups—including the ERLC—advocated for the need to bring these regulations back in line with all other federal nondiscrimination law.  

What does the rule do?

The HHS summary states that the proposed rule would:

What is a regulation, and why is HHS allowed to make such rules?

Regulations are rules that have the force of law because they are issued by various federal government departments and agencies to carry out the intent of legislation enacted by Congress. The executive branch, through the various regulatory agencies, carries out most interpretation of legislation. Regulatory agencies handle administrative law, primarily by codifying and enforcing rules and regulations. When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place.

What was the process for creating this regulation?

When Federal regulatory agencies translate Congressional directives into regulations they must follow provisions set out in the Federal Administrative Procedure Act (5 USC 551-702). This act establishes procedures for developing new regulations, including steps for soliciting and responding to public comment.

Before establishing a new regulation, an agency must issue a draft regulation, obtain and consider public comment, and then issue the final regulation. Each step must be published in the Federal Register—the “official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents.”

This regulation is currently in the public comment period. Objections raised during the public comment period must be addressed before the final regulation is adopted. After it is adopted, the final regulation is incorporated into the Code of Federal Regulations and becomes official government regulatory policy that must be followed.