By / Apr 11

On Feb. 2, 2023, the Departments of Health and Human Services, Labor, and Treasury released a proposed rule modifying “regulations regarding coverage of certain preventive services” under the Affordable Care Act. This is the 19th recorded change to the so-called “contraceptive mandate” since it was created under the Affordable Care Act. 

On Monday, the ERLC filed public comments in opposition to the change.

What does this rule do?

The Affordable Care Act allows the departments to create both a religious and moral exemption to the contraceptive mandate in order to rightly protect the consciences of Americans, whether they are informed by deeply held religious beliefs or moral convictions regarding taking a life. 

Though the proposed rule maintains the existing protections for religious entities and employers, it rescinds the “moral exemption,” created in a 2018 Trump-era rule, that has protected employers who object to providing abortifacient contraceptives for non-religious reasons.

The departments state that they seek, through this rule, to bolster access to birth control at no cost, because the “U.S. Supreme Court’s decision in Dobbs has placed a heightened importance on access to contraceptive services nationwide.” In citing the Dobbs decision as the primary reason for this action, the departments implicitly acknowledge that the provision of certain contraceptives is inextricably tied to the issue of abortion and the act of taking a life.

Why is this problematic?

In support of the proposal, the departments argue that: 

  • (a) a non-religious moral exemption is “not legally required,” 
  • (b) few entities make use of the moral exemption, and 
  • (c) non-religious objections “are outweighed by the strong public interest in making contraceptive coverage as accessible to women as possible.” 

As we argued in our comments, “No significant developments have occurred in the interim that suggest a change is warranted, especially when the stakes — the trampling of citizens’ consciences — are so high.” And the United States has a long history of non-religious Americans with moral objections to taking a life. Our comments go on to state,

As Southern Baptists, we acknowledge that conscience protections are essential to our ability to live out our most deeply held beliefs. For conscience protections to be meaningful, they must not only protect the freedom to believe but also the freedom to live in response to those beliefs. 

Further, these protections are not just for religious people but must be extended to all people, regardless of their faith identification. As our comments affirm, “At the founding of our country, James Madison wrote, ‘Conscience is the most sacred of all property.’ Regardless of the source of the conviction, whether religious or moral, the Constitution guarantees the protection of the conscience.”

How has the ERLC responded?

The ERLC has submitted public comments laying out these concerns with the proposed rule and urging these agencies to reconsider making these changes. While we celebrate the preservation of the religious exemption, this proposed rule protects the consciences of fewer individuals, funnels more money to Planned Parenthood, and seeks to frame objections to contraception and abortion as a fringe religious concern. 

Whether the root of one’s conviction against taking a life is rooted in faith or something else, that person’s conscience should be protected. The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the protection of life and conscience rights.

By / Mar 1

This week, the U.S. Senate Committees on Health, Education, Labor & Pensions (HELP) and Finance held hearings on the nomination of Xavier Becerra for Secretary of the Department of Health and Human Services (HHS). Becerra is among President Joe Biden’s most controversial cabinet nominees, drawing significant opposition from pro-life Americans and religious liberty advocates.

Who is Xavier Becerra?

Currently, he serves as the attorney general of California, succeeding Kamala Harris after she was elected to the United States Senate in 2016. Prior to his appointment as attorney general, he served 12 terms in Congress as a member of the U.S. House of Representatives.

What is Becerra’s history regarding life and religious liberty issues?

As attorney general, Becerra targeted pregnancy resource centers, pro-life policies, and Catholic charities with a range of lawsuits challenging their religious liberty and conscience rights.

In a 2018 Supreme Court case titled National Institute of Family and Life Advocates (NIFLA) v. Xavier Becerra, Attorney General of California, Becerra threatened to shut down pregnancy resource centers serving women and children in crisis. The conflict arose after California passed a law requiring pro-life centers to publicize abortion services provided by the state or face exorbitant fines that would likely run them out of business. Forcing pro-life pregnancy resource centers to advertise for abortions is antithetical to their mission. Thankfully, NIFLA won in a 5-4 decision by the Supreme Court.

In possibly his most infamous pursuit, Becerra filed suit to strip conscience protections for religious organizations, such as the Catholic charity, Little Sisters of the Poor. The suit was an attempt to force them to violate their consciences by providing coverage of contraception and abortifacients to employees. The Little Sisters of the Poor have appeared before the Supreme Court multiple times, repeatedly asking for, and consistently winning, a religious exemption to the contraceptive mandate from the Affordable Care Act and resulting HHS regulations.

As a member of the House of Representatives, Becerra voted regularly against life-protecting and life-saving bills, including voting against the Partial-Birth Abortion Ban Act, the Born-Alive Abortion Survivors Protection Act and the Pain-Capable Unborn Child Protection Act. He also voted against the Conscience Protection Act of 2016, which would have prevented the federal government from denying federal funds to Catholic hospitals and other facilities that refuse to perform abortions. Additionally, he opposed investigating Planned Parenthood’s sale of “fetal tissue” leftover from abortion procedures. 

In December 2020, when then President-elect Biden announced Becerra’s nomination for HHS, ERLC president Russell Moore said

“I expect that, as he undergoes the process of the Senate’s constitutional duty to advise and consent, senators will ask Xavier Becerra about his troubling hostility to pregnancy resource centers and other faith-based institutions during his tenure as California attorney general, and whether such actions would characterize his potential leadership at HHS. The country desperately needs an HHS Department that can help unify and mobilize, not one that will further divide us. The new HHS secretary, a position that is crucially important but never more so than during a global pandemic, should have the coronavirus as enemy number one, not Americans with differing religious convictions.”

What happened at the Senate hearings this week?

Sen. Patty Murray (D-Wash.) opened the hearing before the Senate Committee on Health, Education, Labor & Pensions by highlighting Becarra’s experience as a congressman and as California’s attorney general. Democratic Senators tended to ask questions regarding Becerra’s commitment to healthcare access, high drug prices, and the vaccine rollout. On the other side of the aisle, Republicans raised concerns over rural healthcare funding, excessive government regulations, and abortion. 

Abortion was first brought up in Sen. Mike Braun’s (R-Ind.) opening question. Noting Becerra’s liberal history on the subject, Braun asked if he would commit to “not using taxpayer money to fund abortions and abortion providers.” Becerra largely dodged the question and said that he is “committed to following the law regarding federal resources,” which leaves the door open for taxpayer funded abortions should the Hyde Amendment be repealed — as congressional Democrats have signaled they will try to do this year. The Indiana Senator also mentioned Becerra’s antipathy toward religious liberty, specifically his actions against the Little Sisters of the Poor.

Sen. Romney (R-Utah) also addressed abortion by pressing Becerra to explain his vote against the Partial-Birth Abortion Ban Act. Becerra responded that he understands that people have deeply held beliefs and that he was sure they could find some “common ground.” However, Romney made it clear that while common ground is possible on many issues, it isn’t on partial-birth abortion. 

In the Senate Finance Committee hearing the next day, Becerra’s stances on abortion and religious liberty were questioned again by Republican lawmakers. Sen. James Lankford (R-Okla.) began by stating that Becerra sued the federal government over 100 times as California’s attorney general — including multiple instances regarding conscience protections. In light of these lawsuits, Lankford asked if Becerra would “continue to enforce existing federal law on conscience issues” that he had argued against all the way to the Supreme Court. Lankford further pressed Becerra, asking whether or not faith-based entities would receive grants or aid “at the same level as non-faith based entities.” Becerra struggled to respond and pivoted towards a general response that he would uphold the laws as written. 

Sen. Steve Daines (R-Mont.) said that he has serious concerns regarding Becerra’s “extreme” stance on both abortion and religious liberty. He asked Becerra if he could name “one abortion restriction he might support.” Once again, he responded with his increasingly common refrain that he would simply “follow the law.” 

After a brief recess, Becerra failed to answer any more substantively when Sen. Ben Sasse (R-Neb.) pressed him on enforcing Obamacare’s contraception mandate and accused him of “bullying” the Little Sisters of the Poor. 

How has the ERLC been involved?

The ERLC joined more than 60 pro-life organizations to send a Congressional letter highlighting concerns with Becerra’s nomination. Additionally, the ERLC submitted amicus briefs to the Supreme Court on the cases which Becerra antagonized the Little Sisters of the Poor and NIFLA.

What’s next?

If he passes both committee votes, Becerra will receive a floor vote and would need 50 votes to be confirmed. Sen. Joe Manchin (D-W.Va.) identifies as pro-life and has previously voted in favor of pro-life pieces of legislation such as the Born-Alive bill and the Pain Capable bill. It’s unclear whether Manchin will raise concerns about Becerra’s troubling pro-abortion track record. The ERLC will continue to be a voice for the voiceless and defend the lives of the unborn and the vulnerable.