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 / Oct 5

On Aug. 4, the Department of Health and Human Services (HHS) issued a proposed rule that would significantly reinterpret the Affordable Care Act’s Section 1557 nondiscrimination provision by expanding the definition of “sex” to include sexual orientation, gender identity, and pregnancy-related conditions. Section 1557 of the Patient Protection and Affordable Care Act (ACA) is a nondiscrimination provision that prohibits discrimination on the basis of race, color, national origin, sex, age, or disability under any federally funded health program or activity, executive agency, or entity under Title I of the ACA.

Following the announcement, HHS allowed 60 days for organizations and individuals to comment with concerns. The ERLC submitted comments raising our concerns with the proposed rule. As that comment period closed Monday, HHS is obligated to respond to each of these comments before putting forward a finalized rule.

How has Section 1557 been interpreted historically?

During the Obama administration, new regulations expanded the scope of section 1557’s nondiscrimination policies by redefining “sex” to include sexual orientation, gender identity, and termination of pregnancy. The regulations raised a number of significant issues regarding religious liberty and freedom of conscience. For instance, physicians would be required to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children. The regulations even required medical professionals to perform abortions in violation of their deeply held convictions.

In response to these new regulations, five states and three private healthcare providers filed suit to challenge the final rules. In Franciscan Alliance v. Burwell (2016), a federal district court held that HHS erroneously interpreted “sex” under Title IX and that the final rule was arbitrary and capricious, while Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” The court further ruled that the final rule’s failure to include religious exemptions likely violated the Religious Freedom and Restoration Act (RFRA) and the Administrative Procedure Act (APA).

In 2020, the Trump administration finalized a rule reversing the Obama administration’s regulations on Section 1557 and narrowing the definition of “sex.” Days after the final rule was issued, the Supreme Court handed down a 6-3 ruling in Bostock v. Clayton County that expanded the definition of “sex” to include “sexual orientation” and “gender identity” for the purposes of employment discrimination under Title VII of the Civil Rights Act of 1964. This year, the Biden administration reversed the 2020 rule, then reinstated and expanded the Obama administration’s 2016 rule using the Bostock decision as a justification for its redefinition of “sex.”

Why is this change problematic?

While HHS allegedly plans to comply with the Religious Freedom Restoration Act and all applicable court orders involving section 1557 regulations, it is unclear what this proposed rule means for religious healthcare professionals and insurance providers. Medical professionals and providers could be forced to administer or cover gender reassignment treatments if they provide the same underlying treatments for other conditions, regardless of their objections to the treatment for religious or moral reasons. That is, if a physician performs hysterectomies for cancer patients or hormone therapy for patients with hormone imbalances, HHS may force that doctor to administer those same treatments for patients seeking gender reassignments.

This rule also expands the legal definition of “sex” to include “pregnancy-related conditions”—a term that prohibits discrimination on the basis of “pregnancy, childbirth, termination of pregnancy, or lactation.” While the exact implications of this expansive terminology are still unclear, advocates are concerned that the administration could again weaponize the “termination of pregnancy” language to mandate healthcare providers and other organizations to include abortions and abortifacents in their plans. The government should never fund abortions nor force healthcare professionals to violate their dearly held pro-life convictions. Pro-life appropriations riders such as the Hyde, Weldon, and Church amendments should always be included in the annual budgetary process and strictly followed by executive agencies like HHS.

How has the ERLC responded?

The ERLC has submitted public comments laying out our concerns with the proposed rule and urging them to reconsider making these changes. This proposed rule would have deeply concerning ramifications for life, religious liberty, and the good of our neighbors if enacted. As ERLC’s Jason Thacker said when the proposed rule was introduced, “No matter how quickly our society shifts on the fundamental issues of life and human sexuality, people of faith should not be forced to participate in or promote the myth that we can create our own realities outside of God’s good design for human sexuality and flourishing,” The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the recognition of God’s good design for biological sex and for the protection of religious liberty.

By / Apr 1

On March 30, a Finnish court issued a unanimous ruling dismissing ‘hate speech’ charges against Finnish MP Päivi Räsänen and Bishop Juhana Pohjola. According to Alliance Defending Freedom, who represented Räsänen in this case, the court ruled “it is not for the district court to interpret biblical concepts.” This case garnered international attention, especially from human rights advocates, due to the tenuous nature of expressing biblical views of sexuality in the public square and the nature of free speech in Europe. This ruling comes on the heels of larger ethical debates over overly broad and conflicting definitions of hate speech, the digital public square, and the freedom to express one’s religious views of human sexuality amidst growing social pressure.

Who is Päivi Räsänen?

Räsänen is a medical doctor, former Minister of the Interior (2011–2015), and current Member of Finnish Parliament (since 1995). She is married to a Lutheran pastor, Niilo, and together they have five children. She is an active member of the Finnish Lutheran Church and also chaired the Christian Democrats in Finland from 2004 to 2015. The party’s basic principles focus on their desire to see democracy built upon Christian values, including the dignity of all people and the rights that flow from that inherent dignity rooted in God’s creation of man and women as his image bearers. They explain, “Human dignity is based on a person’s being, not on their doing or abilities. It is priceless, regardless of gender, age, position, religion, origin of birth or other criteria.” From June 2011 to May 2015, she also held the office of the Minister of the Interior of Finland.

Räsänen has drawn significant controversy and the ire of many over her time as a member of the Finnish Parliament. On Oct. 29, 2010, Räsänen said that she would favor Christians over Muslims when selecting asylum seekers to Finland due, in her opinion, to Muslims’ “difficulties to adjust to the Finnish culture,” though she later clarified that she did not believe religion should be a top factor in immigration decisions. She is also a staunch pro-life advocate who has argued against the practice of abortion, contrasting abortion law to animal protection law saying that the latter gives better protection for animals than the former does to human fetuses.

What was this case about?

Charges of hate speech were brought against Räsänen in June 2021 following two years of investigations into her speech regarding several matters including the 2004 pamphlet, “As Man and Woman He Created Them: Homosexuality and the Challenge to the Christian Concept of Man”; comments during a 2-minute segment of a 2019 radio interview; and a tweet directed at the leadership of her church questioning their sponsorship of an LGBTQ+ pride event in 2009 and linking to an Instagram post with a picture of Romans 1:24-27.

Bishop Juhana Pohjola, who serves as the Dean of Evangelical Lutheran Mission Diocese of Finland, also faced charges for publishing Räsänen’s pamphlet for his congregation over 17 years ago. The pamphlet was published and distributed before the enactment of Finland’s hate speech law, which claims to stand for freedom of expression but bans speech declared to be “threatening or defaming people or population groups.” Hate speech under this law is punishable by fine or imprisonment. Räsänen was faced with up to two years of imprisonment due to the multiple criminal charges brought against her by Finland’s Prosecutor General. It should be noted that Räsänen’s tweet and radio interview have been freely available throughout this trial since they did not break Twitter or the radio broadcaster’s policies on hate speech. 

In June 2021, a letter signed by 48 ecclesiastical leaders representing 45 Lutheran church bodies and associations across the globe condemned the ongoing criminal prosecution of MP Räsänen and Bishop Pohjola. On Jan. 24, 2022, five U.S. Senators also sent a letter to United States Ambassador-at-Large for International Religious Freedom Rashad Hussain highlighting this case and encouraging the ambassador to raise concerns to the Finnish government about religious freedom and free speech and to condemn these charges.

On March 30, the Helsinki District Court acquitted and dismissed charges against both Räsänen and Pohjola. The court ruled that even if the statements were controversial, ​​”there must be an overriding social reason for interfering with and restricting freedom of expression.” After the ruling, Räsänen said, “I am so grateful the court recognized the threat to free speech and ruled in our favour. I feel a weight has been lifted off my shoulders after being acquitted. Although I am grateful for having had this chance to stand up for freedom of speech, I hope that this ruling will help prevent others from having to go through the same ordeal.”

What is hate speech?

Hate speech is notoriously difficult to define, especially on the international stage. It is often left undefined in legal terms because of the deep tension that exists between hate speech and free expression. The U.N.’s own plan of action on hate speech from May 2019 makes this clear by saying, “There is no international legal definition of hate speech, and the characterization of what is ‘hateful’ is controversial and disputed.” While the U.N. leaves hate speech undefined, it clearly desires robust protections against hate speech and calls it “a menace to democratic values, social stability and peace” that “must confront[ed] . . . at every turn.”

Similarly, in the United States, there is no legal definition of hate speech in U.S. law as the Supreme Court has routinely affirmed that hate speech is protected by the First Amendment. The Foundation for Individual Rights in Education (FIRE) states, “‘hate speech’ is protected by the First Amendment and cannot lawfully be censored, punished, or unduly burdened by the government — including public colleges and universities.” Expanding on notions of hate speech, the American Library Association explains that “under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group” (emphasis mine).

Why does this matter to Christians?

While freedom of speech and religious freedom is central to the American experiment and should be championed around the world, this case is a good reminder that these freedoms are not rooted in the constitutional order or even in international law. These rights flow from the inherent dignity that all people, across all time and cultures, have as created in the imago Dei. It is important to remember that we do not have a right to be protected from controversial ideas in the public square, nor do we have the right to dictate to others what they must believe or practice in a free society. 

Building off of the legal boundaries of free speech and the limited scope of what constitutes hate speech, societies around the world need to cultivate and recover a robust, healthy dialogue surrounding these contentious issues. The best way to do that is to champion free expression and religious freedom for all, not just those with whom we agree or like. Free expression does not mean that we all must agree on these particular issues, but it does mean that everyone is able to speak their opinion freely and without fear of being cut off by those in power — whether in government or by technology companies who increasingly have authority over the digital public square.

Regardless of what one believes about Räsänen’s speech or beliefs surrounding human sexuality and gender issues, we should all be able to agree that these broadly defined hate speech policies are dangerous to free expression and our public discourse around the world. These issues will not simply pass away because God’s design for human sexuality is central to the life of the church and society. Our societies need more, not less, dialogue and engagement on these contentious issues. 

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 / Feb 25

If you were looking for the very best way to get Americans to accept a radical piece of legislation, giving the bill a clever name would be near the top of the list. This is exactly the case with the so-called “Equality Act,” officially known as H.R. 5. Judging by its name alone, it seems like the kind of legislation that almost anyone would support. After all, what kind of person is opposed to equality? Even more, the bill is supposedly an effort to combat discrimination. And what kind of monster would think discrimination is good? 

But here’s the real issue: it takes more than a clever name to make a good law. And once you move past its name, the serious issues with H.R. 5 are both obvious and alarming.

The Equality Act

The truth is, the Equality Act is not just a bad bill; it’s a dangerous one. (See our explainer and one-pager). It does not represent a good faith effort to protect LGBT Americans from discrimination. It is, in fact, an effort to codify into law the progressive orthodoxy of the sexual revolution and to legally silence those who dissent. 

H.R. 5 would “expand the definition of ‘sex’ to include ‘sexual orientation’ and ‘gender identity’ (SOGI) and would revise every title of the Civil Rights Act of 1964 to add these categories as new protected classes in the federal code.” Should it be enacted, it would imperil religious freedom, substantially harm women and girls, and cement a false conception of the human person into our nation’s laws and consciousness. Not to mention the fact that it would effectively destroy the clear (biologically determined) distinctions between males and females in our society and laws.

And for these reasons, it is paramount that H.R. 5 is defeated.

Addressing discrimination

Christians should oppose discrimination and stand up for human dignity. Of all people, followers of Jesus should recognize the inherent value of every person, regardless of their age, race, ability, religion, or any other details or features that define them, including their sexual orientation and sense of gender identity. Every person is created by God and made in his image (Gen. 1:26-27). That is why every person matters. Regardless of who they are, what they believe, or what they’ve done, no one can separate themselves from the image of God. Being stamped with God’s image means that each person possesses intrinsic dignity and deserves to be treated with respect.

There is no doubt that people in the LGBT community sometimes experience discrimination. But as Ryan T. Anderson points out, “Rather than finding common-sense, narrowly tailored ways to shield LGBT-identifying Americans from truly unjust discrimination, [H.R. 5] would act as a sword — to persecute those who don’t embrace newfangled gender ideologies.”

Anderson is correct. If the Equality Act were merely attempting to eliminate unjust discrimination, it would likely enjoy enthusiastic and bipartisan support. But it isn’t. 

Instead, in the name of “antidiscrimination” H.R. 5 would see Christians and others forced to deny their sincerely held beliefs or suffer untold consequences at the hands of the state. It would see women and girls forced to share private spaces with biological males. It would see pro-life conscience protections stripped away from healthcare professionals. And it would threaten the very existence of countless faith-based charities and nonprofits. 

Disagreement isn’t discrimination

We live in an age where disagreement on issues of sexuality is construed as violence. Christians and others who hold to traditional understandings of gender and sexuality are frequently slandered as zealots and bigots. But in most cases, such charges are baseless.

H.R. 5 would punish people who, whether on the basis of the Bible or biology, hold fast to their beliefs that there are only two sexes (male and female), that gender is tied to biology, and that both of these realities are permanent and fixed. 

Christians should have enormous compassion for people struggling with their sexual identities and for people who believe there is some kind of misalignment between their biological sex and their internal sense of gender. But that compassion doesn’t negate our convictions about God’s intentional design for men and women. Nor does it undermine the importance of biological realities.

Men and women are different. Public policy shouldn’t punish people for adhering to facts supported by science, reason, and faith. Moreover, women and girls shouldn’t be forced to share changing facilities and restrooms with biological males or to compete against them in athletic competitions. Faith-based nonprofits shouldn’t be forced to choose between maintaining their beliefs about human sexuality or ceasing operations. Healthcare professionals shouldn’t be forced to violate their consciences (and medical training) in order to remain licensed and employed.

Opposing the Equality Act

Legislation that would punish people for recognizing distinctions written into our DNA is not a serious way to advance equality. It is, however, a clear demonstration of the strength of the LGBT lobby. People of faith, and all Americans of goodwill, should reject H.R. 5 for exactly what it is, reckless government overreach. 

This bill would eradicate safeguards, destroy civil liberties, and obliterate freedom of conscience. It would also erase women and girls and supplant biological facts with subjective experiences. Supporting H.R. 5 is no way to advance equality.

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 / Nov 6

On Wednesday, the Supreme Court of the United States heard oral arguments in Fulton v. Philadelphia, a crucial religious liberty case whose outcome could determine the ability of faith-based foster care and adoption providers to continue serving consistent with their convictions.

In Philadelphia, Catholic Social Services (CSS) has cared for children and families in need for over 200 years. Then in 2018, a reporter from the Philadelphia Inquirer informed the City of Philadelphia’s Department of Human Services that two of its private foster care agencies, including Catholic Social Services (CSS), would not work with same-sex couples as foster parents. The city investigated the allegation, which it considered a violation of the city’s anti-discrimination laws.

When the agencies confirmed that, because of their religious views on marriage, they would not work with gay couples—although no gay couple had ever attempted to partner with CSS—the department ceased referring foster children to them and demanded they change their religious practices or close down their ministries. For more of the background on this case and the ERLC’s engagement and amicus briefs, see our previous explainer.

The plaintiffs in this case are two foster moms, Sharonell Fulton and Toni Simms-Busch, who simply want to care for vulnerable children in need. On the day of the arguments in Washington, Simms-Busch noted her gratitude that the justices “took our arguments seriously and seemed to understand that foster parents like me just want to provide loving homes for children.” Fulton added, “As a single woman of color, I’ve learned a thing or two about discrimination over the years—but I’ve never experienced the vindictive religious discrimination the City’s politicians have expressed toward my faith.”

Arguments

The oral arguments began with an opening statement by Lori Windham, the Becket attorney representing Simms-Busch and Fulton, before receiving questions from the justices. In her opening statement, Windham argued there was no compelling reason for the city of Philadelphia to exclude Catholic Social Services from its foster care system.

Later, Neal Katyal, the attorney representing the city of Philadelphia, argued in his opening statement that this case is not about private activity or beliefs but about discrimination, as he defines it. When a foster care agency agrees to a government contract, his argument goes, the government has the right to enforce against sexual orientation discrimination rules.

Justices’ response

In his questioning, Justice Kavanaugh emphasized the government’s obligation to balance two constitutional rights: the freedom of religious exercise, protected by the First Amendment, and same-sex marriage, legalized by Obergefell v. Hodges. Kavanaugh said that when these two rights conflict with one another, the government should seek ways to accommodate both sides. He also warned against an absolutist position that refused to respect religious belief. In his view, the city of Philadelphia has not sought reasonable accommodations. Rather, the city is seeking confrontation.

Justice Kavanaugh then cited the fact that no same-sex couple has come to the Catholic agency to participate in its program and that CSS is open to referring same-sex couples to the other 29 agencies in the city.

Notably, Justice Breyer acknowledged he was bothered by the fact that no family has been turned down by the agency.

Justice Alito succinctly expressed his view of the case when he said, “If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples have the opportunity to be foster parents. It’s the fact the City can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old fashion view about marriage.”

Conclusion 

In comments to Baptist Press about the oral arguments, Travis Wussow, ERLC’s vice president of public policy, said:

“The faith community forms the backbone of the child welfare system in our country that consistently answers the call when vulnerable children need help and a safe home. We were encouraged by the oral argument today and hopeful for a clear resolution of this case that allows faith-based child welfare agencies across the country to be able to serve children and foster families consistent with their convictions.”

With the foster care system burdened by the number of children in need, the government should not hinder the ability of agencies like Catholic Social Services to serve its community simply because of their religious beliefs. When the court decides this case, it is our hope that it not only protects religious liberty but also protects the ability of faith-based groups to continue serving the children in Philadelphia who need safe and loving homes.

ERLC policy intern Justin McDowell contributed to this article.

By / Jun 4

Today the Supreme Court handed down a ruling in the most important religious freedom case of the year. Here is what you should know about the case and the Court’s decision:

What just happened?

The Court ruled in a 7-2 decision the actions by the Colorado Civil Rights Commission’s violated the Free Exercise Clause of a Christian baker who refused to create a cake for a same-sex wedding.

What was the case about?

In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court was asked to decide whether the First Amendment is violated when a state punishes a citizen for refusing, for reasons of religious conscience, to create a cake that celebrates a same-sex wedding. (ERLC joined other Baptist, Christian, Jewish, and Muslim denominational entities, colleges and universities, legal associations, and individuals in filing an amicus brief on behalf of Phillips.)

Jack Phillips, owner of Masterpiece Cakeshop, declined to create a custom cake for a same-sex wedding because he believes it would be sinful to participate in celebrating a same-sex wedding. Despite the fact that another bakery readily created the cake the couple wanted, they brought a sexual-orientation-discrimination claim against Phillips. A state civil rights commission found Jack Phillips had violated Colorado law and prohibited him from creating cakes for any wedding unless he also created cakes for same-sex weddings.

Phillips appealed to Colorado’s appellate court, which upheld the commission’s ruling, and the Colorado Supreme Court declined to hear his appeal. The U.S. Supreme Court, however, granted review of his free speech and free exercise claims and heard oral arguments on December 5.

How did the Court rule?

In the majority decision, the Court noted that the “laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

The Court notes that it is difficult to determine whether a baker has a valid free exercise or free speech claim, and the extent to which a baker should be allowed to refuse to provide service.

What was clear, according to the Court’s majority, is that Colorado Civil Rights Commission’s consideration of this case was “inconsistent with the State’s obligation of religious neutrality.” When the Colorado Civil Rights Commission considered this case, says the Court, it did not do so with the religious neutrality that the Constitution requires.

The Court also notes that at several points during its meeting, commissioners endorsed the view that “religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” A commissioner on the panel even suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Another commissioner at a later hearing pointed out that religious freedom had been used to “justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust,”  and said that “to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The Court found that these comments—which were not objected to by other commissioners or even mentioned in later state-court rulings—cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

The Commission had also ruled against Phillips using the justification that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet in three separate cases, the Commission had previously ruled that bakers were allowed to refuse to create cakes with images that conveyed disapproval of same-sex marriage and that had included religious text. The Court found this to be further evidence that Phillips was not being treated neutrally by the commission.

Because of this open bias, the Court concluded that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

How did the justices vote in this case?

Justices Roberts, Kennedy, Bryer, Alito, Kagan, Gorsuch, and Thomas voted in favor of Masterpiece Cake Shop. Justices Ginsburg and Sotomayor voted in dissent and joined in a dissenting opinion.

Justice Gorsuch wrote a separate concurring opinion that articulated an even more robust defense of religious liberty than the majority opinion. Justice Thomas wrote a separate concurring opinion taking up and defending Jack Phillips’ free speech claims under the First Amendment.

What are the broader implications of this case?

Despite a strong majority of justices voting in support of the decision, the implications for religious liberty are rather narrow in scope, and it is difficult to know how it will affect similar cases. “In this case the adjudication concerned a context that may well be different going forward in the respects noted above,” says the Court. “However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.”

As the Court concludes, “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

What is significant about the case, though, is that the Court reiterated, as Justice Kagan says, that “state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.”

By / Jan 24

A right unenforced is no right at all. U.S. 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 the previous administration refused to enforce the Weldon Amendment in several cases involving medical professionals, these Americans are left without a remedy to defend their right.

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, Health and Human Services, 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.” There has long been bipartisan consensus on the compromise between abortion and conscience rights; both the Hyde and Weldon amendments have been attached to every appropriations bill passed through Congress 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.

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 health-care 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 White House, Senate, and House leadership to make the Conscience Protection Act a top priority in negotiations for the December appropriations package. The Conscience Protection Act was included in the House package passed in September. The Senate bill is silent on this issue. The Conscience Protection Act is a top pro-life and religious liberty priority for 2018 for the ERLC, and we urge White House and Congressional leadership to ensure the Conscience Protection Act becomes law.