Explainer: Beccera’s troubling nomination for the Department of Health and Human Services
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.

Top Quotes: Supreme Court rules nuns do not have to ‘violate their religious beliefs’ to serve
By / Jul 9

Today, the Supreme Court issued a 7-2 decision in Little Sisters of the Poor v. Pennsylvania.  In this case the Justices held that religious organizations could be exempt from a government mandate that they provide contraception coverage for their employees.

In 2010, Congress passed the Affordable Care Act which included a mandate for employers to provide contraception for their employees. Although churches were exempt from the mandate, religious employers and nonprofits were not. The Trump administration issued an exemption to this mandate for religious employers.  Pennsylvania and New Jersey sued, arguing that these rules should be struck down because they interfere with the government’s interest in providing access to contraception and alleging that the government violated the ACA and the Administrative Procedure Act when issuing the rules. The Little Sisters of the Poor asked the Court to uphold the exemption for religious organizations. 

The ERLC filed an amicus brief (a friend-of-the-court brief) with other religious organizations arguing that the contraceptive mandate does impose a substantial burden on religious organizations. Specifically, we argued that forcing Little Sisters to provide contraception would violate their sincerely held religious beliefs.  We also pointed out that if the exemption was not granted, the Little Sisters would be subject to over 2 million dollars in files for noncompliance. Both of these reasons prove the mandate imposed a substantial burden.

Justice Thomas wrote the majority opinion and was joined by Chief Justice Roberts, Justices Alito, Gorsuch, and Kavanaugh. Justice Alito wrote a conuccence joined by Justice Thomas. Justice Kagan wrote a concurrence and was joined by Justice Breyer, while Justice Ginsberg and Sotomayor dissented. 

Below are key quotes from both the majority opinion and the dissents highlighting how the court reached their decision. The quotes are organized by topics the justices covered in their writings. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more information on this case and how it will further impact religious organizations, check out our explainer.

Majority Opinion: Justice Thomas joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh

The Trump Administration can provide an exception to the mandate:

“We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.” (2)

“By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA. Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.” (16)

“The dissent resists this conclusion, asserting that the Departments’ interpretation thwarts Congress’ intent to provide contraceptive coverage to the women who are inter- ested in receiving such coverage.” (17)

“Contrary to the dissent’s protestations, it was Congress, not the Departments, that declined to expressly require contraceptive coverage in the ACA itself.” (18)

“The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.” (18)

“We focus our inquiry on whether the Departments satisfied the APA’s objective criteria, just as we have in previous cases. We conclude that they did.” (25)

The Religious Freedom and Restoration Act was the appropriate basis for the HRSA exception:

“It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA.” (20)

“If the Departments did not look to RFRA’s requirements or discuss RFRA at all when formulating their solution, they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.” (22)

Let the Little Sisters serve:

“For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother…But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.” (26)

“After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.” (26)

Concurring Opinion: Justice Alito joined by Justice Gorsuch 

HRSA was right to provide a mandate on the basis of RFRA:

“Under our decision in Hobby Lobby, requiring the Little Sisters or any other employer with a similar religious objection to comply with the mandate would impose a substantial burden.” (6)

“The contraceptive mandate imposes a substantial burden on any employer who, like the Little Sisters, has a sincere religious objection to the use of a listed contraceptive and a sincere religious belief that compliance with the mandate…makes it complicit in the provision to the employer’s workers of a contraceptive to which the employer has a religious objection.” (10)

“I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption. . . . I would bring the Little Sisters’ legal odyssey to an end.” (19)

There is no compelling government interest to force nuns to provide contraception:

“In Hobby Lobby, the Government asserted…that [it] had a compelling interest in “ensuring that all women have access to all FDA-approved contraceptives without cost sharing.” Now, the Government concedes that it lacks a compelling interest in providing such access, and this time, the Government is correct.” (10)

“Thus, in order to establish that it has a ‘compelling interest’ in providing free contraceptives to all women, the Government would have to show that it would commit one of ‘the gravest abuses’ of its responsibilities if it did not furnish free contraceptives to all women. (10-11)

“The ACA—which fails to ensure that millions of women have access to free contraceptives—unmistakably shows that Congress, at least to date, has not regarded this interest as compelling.” (11)

“First, the ACA does not provide contraceptive coverage for women who do not work outside the home. If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck?” (11)

“Second, if Congress thought that there was a compelling need to provide cost-free contraceptives for all working women, why didn’t Congress mandate that coverage in the ACA itself? Why did it leave it to HRSA to decide whether to require such coverage at all?” (11-12)

“Third, the ACA’s very incomplete coverage speaks volumes. The ACA “exempts a great many employers from most of its coverage requirements.” (12)

Warning for the future:

“We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the [Administrative Procedure Act].” (2)

Concurring Opinion: Justice Kagan, joined by Justice Breyer

Justices Kagan and Breyer agreed only with the judgment of the Court and not with the majority’s reasoning. They filed a separate opinion to articulate their reasoning for agreeing with the final outcome of upholding HHS’s rules.

HRSA has authority is issue exceptions:

“I would uphold HRSA’s statutory authority to exempt certain employers from the contraceptive-coverage mandate, but for different reasons than the Court gives.” (1)

“Over the course of two administrations, the Departments have shifted positions on many questions involving the Women’s Health Amendment and the ACA more broadly. But not on whether the Amendment gives HRSA the ability to create exemptions to the contraceptive-coverage mandate. . . While the exemption itself has expanded, the Departments’ reading of the statutory delegation—that the law gives HRSA discretion over the “who” question—has remained the same. I would defer to that longstanding and reasonable interpretation.” (3)

The lower courts should examine that process used in issuing the exemption:

“[T]hat does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside HRSA’s statutory authority, but also as ‘arbitrary [and] capricious.’”(3)

“An agency acting within its sphere of delegated authority can of course flunk the test of ‘reasoned decisionmaking.’  The agency does so when it has not given ‘a satisfactory explanation for its action’—when it has failed to draw a ‘rational connection’ between the problem it has identified and the solution it has chosen, or when its thought process reveals ‘a clear error of judgment.’” (4)

“As noted earlier, I would defer to the Departments’ view of the scope of Congress’s delegation. That means the Departments (assuming they act hand-in-hand with HRSA) have wide latitude over exemptions, so long as they satisfy the requirements of reasoned decisionmaking. But that ‘so long as’ is hardly nothing. Even in an area of broad statutory authority—maybe especially there—agencies must rationally account for their judgments.” (7)

Dissenting Opinion: Justice Ginsburg joined by Justice Sotomayor

Depriving women of contraception coverage:

“Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.” (2)

“Effective contraception, it bears particular emphasis, ‘improves health outcomes for women and [their] children,’ as ‘women with unintended pregnancies are more likely to receive delayed or no prenatal care’ than women with planned pregnancies.” (5)

“Despite Congress’ endeavor, in the Women’s Health Amendment to the ACA, to redress discrimination against women in the provision of healthcare, the exemption the Court today approves would leave many employed women just where they were before insurance issuers were obliged to cover preventive services for them, cost free.” (8)

“In this light, the Court has repeatedly assumed that any religious accommodation to the contraceptive-coverage requirement would preserve women’s continued access to seamless, no-cost contraceptive coverage.” (14)

“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” (1)

Religious exemptions have been wrongfully extended to for-profit companies:

“For years, religious organizations have challenged the self-certification accommodation as insufficiently protective of their religious rights. While I do not doubt the sincerity of these organizations’ opposition to that accommodation, I agree with Pennsylvania and New Jersey that the accommodation does not substantially burden objectors’ religious exercise.” (18)

“Under new rules drafted not by HRSA, but by the IRS, EBSA, and CMS, any ‘non-governmental employer’—even a publicly traded for-profit company—can avail itself of the religious exemption previously reserved for houses of worship.” (7)

“The blanket exemption for religious and moral objectors to contraception formulated by the IRS, EBSA, and CMS is inconsistent with the text of, and Congress’ intent for, both the ACA and RFRA. Neither law authorizes it.” (21)

ERLC interns Julia Stamper, Sloan Collier, Seth Billingsley, and Mary Beth Teague contributed to this article.

The Little Sisters of the Poor take fight for religious liberty to the Supreme Court
By / Mar 25

This week, the Supreme Court of the United States heard oral arguments for one of the most significant cases involving religious liberty it has taken up in decades —Little Sisters of the Poor v. Burwell.  

So who are the Little Sisters, and how did they end up at the highest court in our land?

The Little Sisters of the Poor are an organization of nuns who offer homes and care for impoverished elderly people around the world. Their lives are given to the hundreds of humble tasks of caring for the elderly poor, feeding them, meeting their physical needs and providing them with heavenly hope.

They pay for their work by a tradition of begging. Through daily rounds to local businesses asking for food and other items to offset their operating expenses, small fundraising campaigns and weekend visits to churches, the nuns scrape together their meager budget, trusting that God will provide.  

And now, through complicated regulations stemming from the Affordable Care Act (ObamaCare), the government is giving them the option to either violate their conscience or pay huge fines, fines that would dramatically cut into their service to the poor.

Their case, which involves The Little Sisters of the Poor and other religious organizations, is a consolidation of several cases all asking the Court to do the same thing—uphold their constitutional right to freely exercise their religion. Specifically, they are asking to be allowed to exercise their sincerely held religious belief about the sanctity of life by not being forced to provide access to their employees to contraception with abortive effects.  The issues at hand arose when the Affordable Care Act was passed into law and certain parts of the law had to be filled in by regulation. One of those regulations dealt with health insurance plans providing various types of contraception, including some that Christians of numerous denominations consider to be equivalent to abortion.

The Little Sisters of the Poor, and many other religious organizations that aren’t covered by a church exemption to this regulation, objected because it violates their conscience to be a part of providing the mandated abortion pills. The government tried various ways to make it better, but each one failed to address the issues of conscience raised by the groups.

The government’s ultimate solution allowed the groups to abstain from paying for the drugs, but required them to give their employees a form that entitles the employee to free abortion-pills financed by the government. The government argues that it is providing a sufficient accommodation for the religious groups, because they no longer have to directly pay for the controversial drugs. Yet, their “solution” still requires the Little Sisters to affirmatively act and participate in the government's scheme to provide contraception and abortifacients.

David French at National Review succinctly explains why this is a significant problem for religious liberty:

But here’s the problem: The certification is not an “opt out,” it’s a document that actually empowers a third party to provide free abortion pills. In that way, it’s more like a voucher than an opt-out. Imagine if the government said to a religious employer, “We’re not going to require you to pay for abortions, but we will require you to provide employees with a document that entitles them to a free abortion at the Planned Parenthood clinic down the street.” Would anyone think for a moment that respected religious liberty? Yet that’s the essence of the government “accommodation” here. The Little Sisters object to providing an abortion/contraception voucher — a voucher that could be redeemed for free abortifacients at the discretion of a third-party administrator. 

The government argues that it is simply providing a way for the Little Sisters to object, and then the insurance provides the contraception without any cost to the Little Sisters. But, again, this is not an issue about money; this is an issue of conscience.

The Little Sisters' conscience will not allow them to take any action that leads to the dispersal of abortifacients. Right now, by filing a form or writing to HHS to tell them of their religious objection and the details of their insurance plan, the Little Sisters are still complicit. After they take this action, their insurer is required to provide contraception free of charge. 

The Little Sisters view this as a sin. Their religious freedom is burdened. 

So after many cases involving this violation of religious liberty wound their way through the lower courts, the Supreme Court agreed to consolidate the cases and hear The Little Sisters of the Poor v. Burwell this term.

In oral arguments at the Supreme Court on Wednesday, the eight justices seemed predictably divided. The four reliably liberal justices all posed questions that clearly supported the government’s position. Chief Justice Roberts and Justice Alito seemed in favor of the Little Sisters of the Poor and other religious organizations. Justice Thomas is believed to favor them as well. With Justice Scalia’s seat being vacant, that leaves Justice Kennedy as the usual swing vote.  

The Washington Post’s breakdown of oral arguments provides insight into what each justice is thinking.

If Justice Kennedy sides with the conservatives as he did in Hobby Lobby, then the outcome will most likely be 4-4. When there is a tie, the decision of the lower court reigns.  In this case, religious organizations have lost in seven U.S. Circuits, with only one U.S. Circuit upholding religious liberty. Another option would be for the Court to call for the case to be reargued next term, presumably after a new justice has been appointed by the President, confirmed by the Senate and sworn in.

In the next few months, we must take to our knees in prayer for the justices, specifically, Justice Kennedy, as they decide the fate of religious liberty in our country as we know it.  The sincerely held religious beliefs in this case are just the tip of the iceberg of the religious liberty implications of Supreme Court jurisprudence which could weigh the regulatory state’s agenda above our fundamental right to freely exercise our religion.  

There is a lot at stake for America in this case, but thankfully we have a Heavenly Father who holds all things together. Especially as Easter approaches and we remember the sacrifice on the cross and the defeat of sin and death on our behalf, we can take comfort and continue fighting—for religious liberty for all people, for nuns who serve the elderly poor and for the hearts, minds and souls of all of our fellow Americans.