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Potential HHS rule could dramatically impact health care


April 22, 2022

Catholics and religious-liberty advocates need to be aware of potential regulations that could dramatically impact health care, Bishop warns

The U.S. Department of Health and Human Services (HHS) may be developing new regulations for U.S. health-care law that are intent on imposing an aggressive transgender and surgical abortion agenda on U.S. health care without religious-freedom exceptions.

Attorneys for the Catholic Benefits Association were informed last fall that HHS and its Office of Civil Rights are working on a new, expansive rule that could be issued as early as this month. If implemented, the rule could threaten Catholic health-care providers, including Catholic hospitals that care for one in six hospital patients in the United States.

“Our people need to be prepared for the likely issuance of this proposed rule so that we can be ready to respond quickly and effectively in a way that defends life, the sanctity of the human person and protects religious liberty,” said Bishop Peter Christensen of the Diocese of Boise. Typically, such rulemaking processes include a public comment period, but that period can be as short as 30 to 60 days.

Bishop Christensen echoed concerns expressed by Archbishop William Lori of Baltimore, chairman of the board for the Catholic Benefits Association, who said that proposals in the government’s brief are “breathtaking in their scope and completely lacking in any religious-freedom provisions.”

“Dioceses, religious orders and Catholic apostolates of all kinds need to be aware early on that this may be coming down the track,” Bishop Christensen said.

In 2020, the Trump Administration revised 2016 regulations issued under the Obama Administration that required doctors to perform gender-transition surgeries or refer patients for them – despite objections they would have to the procedure – and required insurance coverage for gender-transition surgeries. However, after the Biden Administration assumed office, HHS began writing a new rule that disposes of the 2020 rule and potentially exceeds the Obama-era regulations by vastly expanding the scope of what discrimination on “the basis of sex” means under the Affordable Care Act (ACA).

Working with the Planned Parenthood Federation of America, the Southern Poverty Law Center, the Center for American Progress, the Human Rights Campaign and other organizations, HHS’s Leadership Conference of Civil and Human Rights issued a 73-page June 2021 memorandum that argues that a new rule should embrace an “expansive definition” of discrimination based on sex.

The memorandum said the rule should require coverage of “gender-transition services”, including cross-sex hormones, sex-reassignment surgery, cosmetic surgery, voice modification and fertility treatments for infertile couples, same-sex couples and some single persons.

The memo states the HHS should include “termination of pregnancy” as a category under the prohibited discrimination on the basis of sex. It would require employers to cover contraceptives, abortion-inducing drugs and sterilizations in health plans. The memo cited the matter as urgent, pointing to increased state restrictions on abortion access.

Proponents of the rule also argue that previous exemptions granted religious organizations should be lifted.

Entities covered under the proposed rule would be all employers with health plans, any organization that receives federal HHS funding and all their contractors, insurance companies and third-party administrators. Enforcement would be carried by government agencies and could also be carried out by employees, patients, health plan enrollees and whistleblowers. Sanctions for violating the rule could include loss of Medicare/Medicaid funding, compensatory and punitive damages and attorney’s fees arising out of a legal claim, and up to five years’ imprisonment of responsible persons.

Doug Wilson, CEO of the Catholic Benefits Association, which represents 71 dioceses and more than 1,000 affiliated members such as charities, hospitals, universities and small businesses, recently told the National Catholic Register that if HHS were to promulgate a rule that reflected the “major concerns” outlined by the Leadership Conference memo, “it would effectively remove all religious considerations from issues around life, family, marriage, the very nature of men and women.”

“There’s no place to hide from this,” he said. Wilson said what the Leadership Conference outlines “would place Catholic health-care providers in an untenable position,” forcing them to choose between staying in business “or provide services and products that are in direct conflict with our basic Catholic teachings.”

“This isn’t a Catholic issue; this is a religious issue,” Wilson said. “This will impact everyone religious, and, essentially, they’re saying that your beliefs have no standing in this discussion.”

Martin Nussbaum, an attorney with Nussbaum Speir Gleason, a Colorado Springs-based firm that represents the CBA and specializes in constitutional law, told the Register that proponents of the rule represent “very powerful activist organizations that have the ear of the government.”

“The earthquake in here is abortion,” Nussbaum said. “They’re saying it has to be covered and it has to be performed.”

The memo also calls for banning “associational discrimination,” so a Catholic hospital, for example, looking to fill a position could not refuse to hire a physician who provided abortions or other medical procedures contrary to Catholic values, Nussbaum explained.

The conference’s memo also urges the HHS to disregard prior precedents and the Religious Freedom Restoration Act (RFRA). The memo takes explicit aim at religious exemptions from government mandates and specifically criticizes the U.S. Conference of Catholic Bishops’ “Ethical and Religious Directives” that govern Catholic health-care providers.

“Religious exemptions have serious and harmful implications,” the memo states. “They were thought of as a way to preserve religious freedom and independence. However, they often come as a societal cost that can affect other community members. Impacts of a religious exemption cannot be siloed from other areas of society.”

“We are again faced with forces single-mindedly working to cancel Catholic values around the dignity of life, marriage, family, and the very nature of the human person,” said CEO Wilson of the Catholic Benefits Association. “It should be a warning to all that politically appointed individuals, not accountable to voters, are again enacting repressive mandates that trample constitutional protections in an effort to implement an ideological agenda at odds with the will of most Americans.”

One justification cited by apologists for HHS’ recalibration on religious freedom is that support is diminishing for the retention of religious perspectives in America’s public square. Yet that claim is categorically refuted by the findings of the Becket Fund for Religious Liberty’s annual “Religious Freedom Index.” According to Becket’s polling data, an overwhelming majority of 79 percent of Americans support the freedom of groups and individuals not to participate in actions or work that violates “their sincere religious beliefs and conscience.” This support isn’t declining; it is actually a percentage point higher than it was in 2020.

Moreover, the Becket index also found substantial support for religious liberty in the specific area of health-care provision. Forty-four percent of respondents said that hospitals and health-care systems run by religious organizations should be allowed to operate in conformity with their beliefs, compared to only 26 percent who said they opposed this freedom.

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Diocesan Pastoral Center

FAX: (208) 342-0224

1501 S. FEDERAL WAY, SUITE 400, BOISE, ID 83705

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