Analysis: What a Xavier Becerra HHS could mean for Catholics

Washington, D.C. Newsroom, Dec 9, 2020 / 15:30 pm

On Monday, President-elect Joe Biden tapped California attorney general Xavier Becerra to head the Department of Health and Human Services. If appointed, Becerra will lead an agency that has been at the epicenter of the "culture wars" in the U.S.-and many Catholic groups will now be bracing for those fights to intensify.

Becerra's record in California shows that he, perhaps more than any other state attorney general, has been willing to wield the power of the state to enforce pro-abortion policies against religious and pro-life groups.

And if appointed as Health Secretary, he would have authority to craft far-reaching policy across a number of controversial "culture war" issues.

Among the many offices at HHS are ones that oversee Medicare and Medicaid, children and families, global health affairs, civil rights in health care, substance abuse, and the Food and Drug Administration (FDA).

HHS has authority over a broad range of concerns-federally-funded adoption agencies, regulation of the abortion pill, refugee resettlement, anti-human trafficking efforts, global health, and family planning, to name a few.

Health policy also intersects with the work of the Catholic Church, which historically has had a large and heavy footprint on U.S. health care. Perhaps in no other area, aside from education, does the Church work more with the broader society.

An estimated one in six hospital beds in the U.S. is in a Catholic hospital, according to the ACLU. Catholics provide adoption and foster care services around the country, and help resettle refugee families. They operate shelters for human trafficking survivors. Catholic doctors, nurses, and foster mothers may work anywhere in the healthcare system, not just at Catholic institutions.

Furthermore, many Catholic employers offer health coverage to their employees-another area of HHS oversight in the wake of the Affordable Care Act.

It is also true that in health care, the "culture war" battles are raging the hardest. A number of groups-chief among them the ACLU-have for years been pushing for contraceptives, abortions, same-sex marriages, and gender-transition procedures to become the norm in health care and family life, whether or not religious organizations agree.

An administration which is willing to aggressively back abortion, marriage redefinition, and gender ideology could pick a lot of fights with Catholic organizations-and that is exactly what happened under the Obama administration.

The HHS crafted the contraceptive mandate, which forced many Catholic employers-including the Little Sisters of the Poor-into court. Even after the sisters were granted a broader conscience and religious freedom exemption, it was challenged by several state attorneys general, including Becerra.

In 2016, the agency required doctors to perform gender-transition surgeries upon the referral of a mental health professional, whether or not doctors agreed with the procedure. In addition, many insurance companies and employers were required to cover the procedure.

The HHS also has some authority over how taxpayer dollars appropriated by Congress can be spent, by making funds to health providers or other grantees conditional upon certain mandates. And the Obama-era HHS began making controversial requirements of grant recipients-requirements that Catholic organizations said they could not obey in conscience.

HHS required adoption and foster care agencies to work with same-sex couples in order to receive federal funding.

In 2011, the U.S. Conference of Catholic Bishops (USCCB) saw its anti-trafficking grant application denied by HHS because it would not refer trafficking victims for abortions or contraceptives. Agency leadership reportedly overruled other staffers who said the USCCB had superior qualifications to those of the other grant applicants.  

HHS also helps resolve health care-related discrimination complaints through its Office of Civil Rights (OCR). This office may often be involved HIPAA-related cases, defending the privacy of patients' medical records, or in ensuring access to health care for disabled persons with communication issues.

However, OCR can also be involved in other discrimination complaints regarding religious freedom or gender identity.

In 2015 the Obama-era OCR settled a dispute where an individual identifying as a transgender female had requested not to share a room with a male at a Brooklyn hospital. The administration sided with the transgender female.

Beginning in 2017, however, the Trump administration began moving in the opposite direction in the "culture wars," prioritizing conscience protections, religious freedom, and curbing funding of groups promoting abortion.

Although the administration clashed repeatedly with the U.S. bishops on immigration and refugee resettlement, it often offered much-desired relief for religious groups in health care.

The administration crafted conscience protections for health care workers, granted relief to the Little Sisters of the Poor from the contraceptive mandate, declared "there is no international right to abortion" at the United Nations General Assembly, and made religious and conscience exemptions for federal grantees in adoption and health care.

The Trump HHS blocked family planning grants from groups that refer for abortions, or are co-located with abortion clinics. As a result, Planned Parenthood backed out of the program and forfeited an estimated $60 million annually in grants rather than comply with the new regulations.

In 2018, the administration established a new Conscience and Religious Freedom Division within the HHS OCR. The office said it experienced a surge in religious freedom-related discrimination complaints following the move.

Under head Roger Severino, the HHS OCR has been involved in settling several religious disputes in the last two years involving access of patients to clergy during the pandemic, and a Vermont hospital that allegedly forced a nurse to participate in an abortion against her conscientious beliefs.

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HHS was at the center of an immigration battle in 2017, when the ACLU sued the administration for an undocumented teenage immigrant not being able to obtain an abortion while at a federally-operated shelter.

The policy of ORR-an office at HHS-said that government shelters should not be compelled to transport women to have abortions. After three years of litigation, however, the administration recently changed the policy and said ORR providers would not obstruct abortions for "unaccompanied alien children."

The HHS also enforces existing federal protections for persons and organizations that object to providing abortions.

When California in 2014 forced employers to cover abortions in their health plans, a number of religious organizations appealed to the HHS OCR; the state's act violated the Weldon Amendment, the pro-life groups said.

The Obama administration at the time said that California had not violated the Weldon Amendment in forcing employers to cover abortions. However, in 2020 the HHS OCR sent California a notice of violation over the requirement. Becerra, acting as attorney general of California, refused to comply with the HHS notice.

These are just a number of areas where the HHS can square off against-or work with-religious and pro-life groups. With the possible confirmation of Becerra, many Catholic institutions will be counting up the myriad of Obama-era "culture war" fights that could reignite-and burn hotter than ever before.