By / Oct 14

Recently, the Department of Veteran Affairs (VA) released a new Interim Final Rule (IFR): Reproductive Health Services, 87 FR 55287. The rule expands access to abortion by amending current regulations and removing an exclusion on abortion counseling and abortions in the medical benefits package for veterans and eligible family members. This change in rules creates taxpayer-funded abortions by the VA. Following the announcement, the VA allowed 30 days for organizations and individuals to comment with concerns. The ERLC submitted comments raising our concerns with the rule. As that comment period closed Tuesday, the VA is obligated to respond to each of these comments before moving forward with the permanent change.

What changed because of the rule?

The rule change creates a number of problems in addition to expanded abortion access. The VA has argued that their rule change preempts state laws and would allow them to offer abortion even in states where it is banned. Additionally, the rule removes gestational limits, as well as allowing abortion in cases of rape, incest, and life or health of the mother. This functionally permits abortion on demand. The IFR argues that this is necessary because abortion is “medically necessary and appropriate” in instances of rape or incest. Finally, the rule would force medical professionals at the VA to participate in abortions, overriding conscience protections. 

Because the rule was submitted as an IFR, it did not have to go through the usual process of soliciting comments before going into effect. The VA claimed that because of special circumstances that it should be allowed to skip the review process and instead be implemented immediately. 

How did the ERLC respond?

The ERLC submitted comments opposing the rule along with other pro-life and religious liberty organizations. The ERLC objected to the way that the IFR would force taxpayers to fund abortions and force healthcare officials to violate their beliefs about the value of life. The ERLC and Southern Baptists have long affirmed that every life is worthy of protection, including the preborn. Because life begins at conception, abortion denies human life and dignity. 

Further, the ERLC condemned the IFR as unlawful because it was attempting to override the explicit statutory prohibition against the VA providing abortion services. A 1992 law explicitly forbids the VA from providing abortions. Further, the VA’s own former regulations clearly stated that the medical benefits and services would not include abortion and abortion counseling. Further, the VA’s explanation for why it should be allowed to override the 1992 law and former regulations rests on a faulty reading of a 1996 law which does not mention abortion with no evidence that Congress intended to override the former law. 

Finally, the ERLC called the administration to recognize that the rule did not provide exceptions for those who object to performing abortions because it violates their conscience rights and deeply held religious beliefs. The IFR makes no allowances for medical professionals who object, steamrolling over the rights of providers to live out their religious beliefs that every life is sacred and abortion violates human dignity. The VA’s decision to offer abortions is not a compelling government interest approaching the standard necessary to override the conscience rights of these doctors and nurses. 

As an unconstitutional rule that will lead to violations of human dignity and conscience rights, the ERLC called on the Department of Veteran Affairs to withdraw the rule.

How should Christians think about it?

The VA rule represents the most recent example of the pernicious lie that abortion is healthcare. All people should recognize that healthcare is oriented toward the preservation of human life. However, abortion’s sole purpose is the ending of a human life. However, Christians must also recognize that even the logic of abortion as healthcare falls apart in the circumstances of this rule. The VA’s new rule argues that these abortions are medically necessary, even though every state already has an exception for the life of the mother. Christians should be vocal in their opposition to this rule because it is an attempt by administration officials to circumvent state laws that clearly protect life and provide abortion on demand on the taxpayer’s dime.

Additionally, the law is a heinous overreach of the conscience rights of medical providers and would require them to violate their sincerely held religious beliefs. As currently written, the state is not only allowing and funding the murder of the preborn, it is ordering Christian doctors and nurses to participate. As Christians we recognize that Christ alone is Lord of the conscience, and that our ultimate allegiance is to him. As Southern Baptists, this attempt to run roughshod over the consciences of Christian medical professionals and taxpayers is but the latest instance of Caesar attempting to exercise authority over a realm in which he has none. Christians should oppose this rule and its attempt to coopt Christian men and women into furthering a culture of death. 

By / Aug 6

As American culture continues to transform, one of the areas of particular concern for communities of faith is the preservation of religious liberty and all its applications. From the pew to the public square, people of faith have long enjoyed accommodations allowing them to act according to their conscience, abstaining from actions that would violate their deeply held religious convictions, for instance. This has long been a hallmark of life in America.

But recent actions by the current administration threaten to undermine these fundamental exercises of freedom. The Department of Justice, on July 30, dismissed a lawsuit filed by its Civil Rights Division against the University of Vermont Medical Center (UVMMC) which stated that UVMMC, in forcing a staff member to participate in an abortive procedure despite her stated moral objections, violated “the federal anti-discrimination statute known as the Church Amendments.” What proved to be a clear violation of the law by UVMMC ended with “no admission of guilt, no injunction, no corrective action, no settlement,” resulting in what Roger Severino says is “effectively a full pardon” for the organization. The ERLC joins Severino and the team at the Ethics and Public Policy Center in decrying this outrageous development. 

What was the lawsuit about?

On Aug. 28, 2019, the U.S. Department of Health and Human Services (HHS), Office for Civil Rights issued a Notice of Violation stating that “after a thorough investigation and prolonged attempts to resolve the matter,” it was determined that UVMMC “violated the Church Amendments (42 U.S.C. 300a-7) by forcing a nurse to assist in an elective abortion procedure over the nurse’s conscience-based objections.” 

In response to these findings, “the Justice Department’s Civil Rights Division”, on Dec. 16, 2020, “filed a civil lawsuit in Vermont federal court against the University of Vermont Medical Center” for its egregious act of discrimination. 

In the Justice Department’s press release, referring to the aforementioned “Church Amendments,” the statement declares that “that statute prohibits health care entities like UVMMC from discriminating against health care workers who follow their conscience and refuse to perform or assist with abortions.” The statement goes on to call UVMMC’s actions “an indecent coercion that violates everything this country stands for,” a “shocking and outrageous attack against the right of all people in this free country to follow their conscience,” and stating, “the U.S. Department of Justice will not stand for it.” 

Why was the lawsuit dropped?

Shockingly, though, the newly appointed Justice Department had a dramatic change of mind, deciding to “stand for it,” after all. 

According to Severino, the Department of Justice’s and HHS’ unusual step of dropping “a duly authorized lawsuit after it has been investigated and filed” is attributable to the newly elected and appointed administration. Since the violation, investigation, and eventual lawsuit all occurred under the previous administration, and seemed headed for some sort of lawful resolution, it is difficult to explain this move in any other way.

What happens next in this case?

Because the case was voluntarily dropped by the Department of Justice, it appears that no further action will be taken. As Severino pointed out, there was no admission of guilt, no order of injunction, no recommendation for corrective actions or measures, and no settlement awarded to the victim in this case. Furthermore, the victim herself has little-to-no legal actions at her disposal “due to nuances around private rights of action.” 

As such, the University of Vermont Medical Center will continue to receive federal funds “despite it having been found by the U.S. Department of Health and Human Services to have violated the law.”

What’s at stake in this case and others like it?

Considering the language used by Eric Dreiband, former assistant attorney general for the Justice Department’s Civil Rights Division, “everything that this country stands for” is at stake in a case such as this. 

Flagrant forms of discrimination like this against persons of faith are a direct violation of federal law, as the HHS Office for Civil Rights articulated in its Notice of Violation. Moreover, it is a transgression against one of the most fundamental human rights, freedom of conscience. If the outcome of this case is indicative of this administration’s intentions toward people of faith, then it signals a blatant disavowal of America’s most foundational and cherished liberty. 

Christians should stand ready to involve ourselves in the work of preserving and expanding conscience-protections on behalf of all people of faith, ensuring that religious and civil liberties continue to enjoy robust protections.  As always, the ERLC is committed to working on behalf of Southern Baptists, the broader Christian community, and all people of faith to defend these fundamental rights. 

Are there forthcoming legislative remedies?

In terms of expanding conscience-protections, specifically in the field of healthcare, Sen. James Lankford (R-OK), in January 2019, introduced the Conscience Protection Act, an effort “to protect healthcare providers, including health care professionals, entities, and health insurance plans from government discrimination if they decline to participate in abortions,” which he then reintroduced on Feb. 23, 2021.

Whereas, in the event of a situation like that which occurred at UVMMC, where conscience-protections were clearly violated, “the only recourse is to file a complaint with the HHS Office for Civil Rights,” the Conscience Protection Act “provides doctors, nurses, and other health care workers permanent protection from being discriminated against by employers if they choose to follow their conscience and do not wish to perform, participate in, or provide an abortion.” As Lankford says, “Many entered health care to protect life; they should not be forced to take a life to keep their jobs.”

The passage of this bill would be a commendable step toward protecting the rights of conscience for those employed in the healthcare industry, and it’s one that the ERLC wholeheartedly supports. 

It is likely that cases similar to the one at UVMMC will continue to pop up as culture trends in a secular direction, but legislation like the Conscience Protection Act would ensure that robust and necessary protections are guaranteed for conscience-bound healthcare workers who find themselves in morally objectionable situations. 

By / Mar 25

A right unenforced is hardly a right at all. Federal law, through the Weldon Amendment and other provisions, has long protected the conscience rights of all Americans. And yet, because the Department of Health and Human Services (HHS) under previous administrations refused to enforce the Weldon Amendment in several cases involving medical professionals, these Americans are left without a remedy to defend their right. Thankfully, HHS rules and enforcement by the Trump Administration clarified these rights in certain cases.

Current federal law prohibits the coercion of those with religious and moral objections to abortion into participating in or funding abortion services. The Church Amendment of 1973 states that hospitals or individuals who receive federal funds will not be required to participate in abortion. The Hyde Amendment prohibits government appropriations from being used to fund abortion or health benefits that cover of abortion. And the Weldon Amendment prohibits appropriations to the Departments of Labor, HHS, and Education to be made available to any governmental entity that discriminates, “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” The bipartisan consensus on the compromise between abortion and conscience rights has held for decades. As a specific example, both the Hyde and Weldon amendments have been attached to every appropriations bill passed through Congress and signed into law at the White House since 2004.

In the face of all these protections, numerous state governments and entities receiving federal funds are violating federal law. In 2009, nurse Cathy Cenzon-DeCarlo at Mount Sinai Hospital in New York was forced by her superiors to assist in the dismemberment abortion of a 22-week old baby. When she objected, she was threatened with the loss of her job. Mount Sinai, a recipient of millions in federal funding for research, violated the Church Amendment, a related conscience protection, by coercing nurse DeCarlo to participate in the abortion. Another example of abuse, among many others, happened in 2011 when the United States Conference of Catholic Bishops’ (USCCB) Migration and Refugee Services was denied an HHS grant renewal for serving survivors of human trafficking. HHS, in blatant violation of both the Hyde and Weldon amendments, denied this grant because USCCB would not commit to referring their survivor clients to healthcare providers that covered abortion.

During the Obama Administration, HHS failed to defend those like Nurse DeCarlo and USCCB, leaving them without a remedy. This is especially problematic considering that in USCCB’s case, HHS was the alleged violator. Protecting the right to live according to one’s own deeply held beliefs is too important to leave to political discretion.

The Conscience Protection Act would provide conscience abuse victims the ability to defend their rights with tailored legal remedies. Healthcare professionals need a stated and reasonable legal remedy to defend their freedom of conscience when infringed upon by a superior. Currently, the only enforcement mechanism should HHS honor a conscience abuse complaint is to eliminate federal funding to the state government or entity in question because Church, Hyde, and Weldon are “limitation of funds” riders. The elimination of federal funds to an entire state is an unreasonable, and therefore not used, response. This is why new congressional action for conscience protection is important even during a presidential administration friendly to conscience freedom claims.

The ERLC is committed to this policy because it touches two of our most closely held convictions. Protecting the consciences of our neighbors is an exercise in religious liberty. Protecting healthcare workers from the coercive on-demand abortion industry is a pro-life responsibility. Protecting the conscience freedom of pro-life healthcare professionals is one of the ERLC’s top legislative priorities.

The ERLC urges Congress to support the Conscience Protection Act of 2021. 

By / Dec 18

The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) made two announcements regarding conscience protection. First, HHS announced that it will “disallow $200 million in federal Medicaid funds going to California in the upcoming quarter due to the state illegally mandating that all healthcare plans subject to regulation by the California Department of Managed Health Care (DMHC) cover abortion without exclusion or limitation.”

In addition, they announced that they have referred the University of Vermont Medical Center (UVMMC) to the U.S. Department of Justice (DOJ) for enforcement after an investigation of UVMMC’s violation of conscience protection laws.

What happened in California?

In January 2020, HHS and OCR announced a “Notice of Violation” against the state of California over its mandate that health insurance in the state cover elective abortions. This California state policy went into effect in 2014 and has been challenged by religious organizations in the courts. California’s abortion insurance mandate requires all healthcare plans to cover elective abortions, even if the organization has sincere objections to paying for or covering abortion. This abortion mandate even requires healthcare plans covering a group of Catholic nuns serving the poor to include coverage for elective abortions. Such an overwhelming state fiat on a sensitive and contested issue is well outside the bounds of both federal law and common decency.

The Notice of Violation stated that California’s abortion insurance mandate is a violation of the Weldon Amendment, first passed in 2005, which states that no federal funds appropriated for healthcare “may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Instead of withholding all federal funding to California, HHS announced that it would withhold $200 million per quarter. OCR is charged with enforcing federal conscience statutes, including the Weldon Amendment.

Almost a year later, California has still refused to comply with the Weldon Amendment, therefore OCR referred the issue to the Centers for Medicare & Medicaid Services (CMS) for enforcement. According to HHS, the enforcement penalty against California will be disallowing California $200 million in Medicaid Federal Financial Participation (FFP) funds each fiscal year quarter, beginning January 2021, and totaling $800,000,000 annually, until California comes into compliance with the Weldon Amendment. 

What happened in Vermont?

In 2018, a nurse at the University of Vermont Medical Center (UVMMC) filed a compaint with OCR, citing that she was forced to assist in an abortion, despite her religious objections to performin the elective abortion. HHS has stated that UVMMC could have readily, and without interruption to patient services, accommodated the religious or moral objections to elective abortion of its healthcare personnel. Yet, they chose not to, and forced the nurse to perform the abortion.

OCR completed its investigation in 2019, and requested that UVMMC confirm its policies and take corrective action. UVMMC refused to comply, even though it had an obligation as a federal grant recipient. The Department of Justice filed suit in the U.S. District Court for the District of Vermont on behalf of HHS, seeking a court order requiring UVMMC to comply with the Church Amendments and uphold its contractual obligation.

What’s next?

The ERLC stands firmly on the principle that no American should be forced by the state to participate in, pay for, or be complicit in abortion. There are multiple, longstanding, and bipartisan laws in the U.S. code to prevent such grievous conscience violations. As the lines of debate have unfortunately moved in recent years on these decades of mutual respect, the ERLC has prioritized efforts to protect pro-life healthcare professionals and shield taxpayer dollars from the tragedy of abortion.

Over the past few years, we have been grateful for the strong actions by the HHS Office of Civil Rights. It is right to uphold these laws for the sacred protection of human dignity. Abortion is not healthcare. And it is deeply unfortunate that the state government in California would entangle abortion with actual healthcare services, especially during a pandemic. Now the state is facing the legal consequences of their continued conscience violation.

The ERLC continues to advocate for life at every level of the government and will work to ensure that consciences are protected.

By / Sep 28

What’s the case about?

Carl and Angel Larsen are filmmakers in St. Cloud, Minnesota and the owners of Telescope Media Group, a company that “exists to glorify God through top-quality media production.” The Larsens want to expand their business to include wedding videos for public clients but are afraid the Minnesota Human Rights Act (MHRA) would prevent them from limiting their services to the expression of biblical marriage between a man and a woman.

With the aid of Alliance Defending Freedom (ADF), the Larsens are pursuing a pre-enforcement challenge to the law through the federal court system. Last week, though, the court denied their request and ruled in favor of the state’s motion to dismiss the lawsuit. ADF is currently appealing the court’s decision.

What is the purpose of the lawsuit?

The Minnesota Department of Human Rights has interpreted the MRHA in a way that forces creative professionals like the Larsens to promote objectionable messages even though, as ADF points out, “they gladly serve everyone and decide what stories to tell based on the story’s message, not any client’s personal characteristics.”

The lawsuit, Telescope Media Group v. Lindsey, is a pre-enforcement challenge to those portions of the MHRA.

What is a “pre-enforcement challenge”?

The law discriminates against Christians because the state disagrees with our message.

A pre-enforcement challenge is a lawsuit brought to challenge a law that has not yet been enforced against the challenger. According to ADF, courts allow pre-enforcement challenges 1) when enforcement is "certainly impending" or a "substantial risk" or 2) when the law presently injures the citizen.

This second scenario often occurs when a statute restricts free speech and litigants stop speaking to avoid penalties. To mitigate this "self-censorship" injury, courts frequently hear pre-enforcement challenges in the First Amendment context, even allowing speakers to challenge laws when they haven't been “directly” threatened with arrest.

 What is the Minnesota Human Rights Act?

The Minnesota Human Rights Act (MHRA) is a state law prohibiting discrimination in Minnesota based on race, color, creed, religion, national origin, sex, marital status, familial status, disability, public assistance status, age, sexual orientation, and Local Human Rights Commission Activity.

In 1993, the Minnesota Legislature amended the MHRA to include a prohibition on many forms of discrimination on the basis of “sexual orientation.” The statute broadly defines “sexual orientation” to include anyone “having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness.” (The only exception under the definition is that “sexual orientation” does not include a physical or sexual attachment to children by an adult.”

Why should Christians care about this lawsuit?

As the lawsuit notes, the Larsens are Christians who believe God has called them to use their talents to create media productions that honor God. The couple is “deeply concerned that American culture is increasingly turning away from the historic, biblically-orthodox definition of marriage as a lifelong union of one man and one woman” and that “more and more people are accepting the view that same-sex marriage is equivalent to one-man, one-woman marriage.” The Larsens want to be able to use the power of film and media production to “change hearts and minds” and to “celebrate and promote God’s design for marriage as a lifelong union of one man and one woman.”

However, the MHRA would impose restrictions on their Free Speech by imposing a requirement for them to use their talents and their company to spread a message the couple disagree with. The state’s human rights commission has explicitly stated that any business that creates “expressive wedding-related services” and declines to celebrate same-sex weddings is in violation of the law.

By refusing to film a same-sex wedding the Larsens could be subjected to the payment of a civil penalty to the state, as well as compensatory damages and punitive damages up to $25,000 per aggrieved party. They could also be charged with the criminal offense of discrimination, a misdemeanor under Minnesota law punishable by a fine of up to $1,000, up to 90 days in jail, or both.

The MHRA is thus being used to discriminate against Christians because the state disagrees with the content of their message, a clear violation of First Amendment freedoms of speech and religion.

“People should have the freedom to disagree on critical matters of conscience, which is why everyone, regardless of their view of marriage, can support the Larsens,” says Jeremy Tedesco, a senior counsel and vice president of U.S. Advocacy and Administration for Alliance Defending Freedom. “The same government that can force them to violate their faith and conscience can force any one of us to do the same. That’s why we plan to appeal this ruling to the 8th Circuit.”