Following an attempt to resurrect the Obama-era HHS contraception mandate last March, Secretary of Health and Human Services (HHS) Xavier Becerra issued a revised and final rule this week that preserves some conscience rights for Americans regarding contraception and abortion.
In January 2023, HHS published a proposal to rescind the robust conscience protections crafted under the Trump administration. This action triggered a “comment period” during which CatholicVote supporters submitted 9,604 individual letters objecting to the mandate.
As CatholicVote reported, the “HHS mandate” refers “to the requirement under Obamacare for employers to pay for abortifacients, contraceptives, and sterilization in their health insurance plans.”
“We know now that HHS had to field over 48,000 public comments in reaction to this move,” said CatholicVote Vice President Josh Mercer.
“CatholicVote’s supporters made it clear that they would hold the Biden administration accountable to this blatant attack on American freedom that would condemn us to even more years of ugly lawfare,” he added.
The HHS mandate, rolled out under President Barack Obama in 2011, was most infamously used in a series of lawsuits intended to force the Little Sisters of the Poor to pay for so-called “services” that violated the religious community’s conscience. After multiple Supreme Court cases, the Sisters and other faith-based organizations were granted exemptions for their “religious beliefs.”
The Trump administration expanded this protection in 2019 to include non-religious organizations and businesses that object on moral grounds as well.
Published on January 9, Becerra’s final rule, “Safeguarding the Rights of Conscience as Protected by Federal Statutes,” largely rescinds those Trump-era federal conscience protections.
In the rule’s text, HHS claims to be striking a balance between Americans’ “right” to contraception and abortion and honoring religious beliefs:
Some doctors, nurses, and hospitals, for example, object for religious or moral reasons to providing or referring for abortions or assisted suicide, among other procedures. Respecting such objections honors liberty and human dignity.
The Bottom Line
CatholicVote’s Director of Government Affairs Tom McClusky noted:
Is this a win for religious freedom? I’d say it could have been much worse. The onslaught of public protest prevented HHS from sending us back to 2011. But the rule definitely leaves Americans at the mercy of Becerra’s whims – and whether he feels that the protections we do have are even worth enforcing.
McClusky also noted that the Biden administration is sending mixed signals.
“Becerra’s name is also in cases like Texas vs. Becerra, where HHS is trying – and so far failing – to force emergency room doctors to perform elective abortions,” McClusky said.
Pointing to efforts to use the Emergency Medical Treatment and Active Labor Act (EMTALA) to promote abortion, McClusky added:
On the one hand, we get these vague protections from HHS, while at the same time we see the administration taking the issue all the way to the Supreme Court to use EMTALA to promote their radical abortion agenda.
