By Matt Hadro
Washington D.C., Feb 24, 2021 / 14:24 pm
On Wednesday, President Biden's health secretary nominee explained his support of coercive contraceptive and abortion coverage mandates against Catholic nuns, claiming he had never "sued any nuns."
"I have never sued any nuns. I have taken on the federal government, but I have never sued any affiliation of nuns," said Xavier Becerra-currently California's attorney general-before members of the Senate Finance Committee on Wednesday, at his confirmation hearing to be the next health secretary.
While Becerra has not directly filed lawsuits against Catholic nuns in his time as California attorney general, two different orders of Catholic nuns have claimed religious freedom violations by government mandates that he supported in his official capacity.
In 2017, Becerra sued the Trump administration over its religious and moral exemptions granted to groups affected by the HHS contraceptive mandate. These objecting groups included the Little Sisters of the Poor, who fought the mandate for years in court.
Becerra's lawsuit-as well as a lawsuit by the state of Pennsylvania against the administration-resulted in the nuns appealing to the Supreme Court to intervene in the case, to defend their exemption. The court in 2019 allowed them to intervene, and ultimately ruled in their favor in July by upholding the Trump administration's religious and moral exemptions to the HHS contraceptive mandate.
Despite his previous lawsuit, when asked on Wednesday by Sen. Steve Daines (R-Mont.) if he would uphold the current religious exemptions to the HHS mandate for the Little Sisters of the Poor, Becerra said he would "defend the law and support the law that's in place."
President Biden has previously said he would remove the religious exemption granted by the Trump administration to the nuns.
In another case involving Becerra and nuns, a group of Catholic nuns was affected by the state's universal abortion coverage mandate. They did not fight the mandate in court, but did file a complaint with the civil rights office at the Department of Health and Human Services (HHS). The Missionary Guadalupanas of the Holy Spirit alleged that their religious freedom was being violated by having to provide abortion coverage in health plans.
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The HHS office in Jan., 2020 ultimately found that Becerra violated federal conscience laws, and gave him 30 days to comply with the law. Becerra refused, and in December the agency announced it would withhold $200 million in Medicaid funds to California.
On Wednesday, Becerra had been asked by Sen. John Thune (R-S.D.) about his record on religious freedom and abortion.
"It does seem like, as [California] Attorney General, you spent an inordinate amount of time and effort suing pro-life organizations like Little Sisters of the Poor, or trying to ease restrictions or expand abortion," Thune said.
In his tenure as the state's attorney general, Becerra also upheld state abortion laws such as a requirement that crisis pregnancy centers advertise for abortions. The Supreme Court ultimately ruled against that law in its 2018 ruling NIFLA v. Becerra.
Becerra also pushed for the U.S. Food and Drug Administration (FDA) to loosen its safety regulations of the abortion pill regimen, and on Tuesday indicated that he wanted to allow the abortion pill to be prescribed and dispensed remotely-a change from existing FDA regulations.
"I believe the majority of the American people would not want their Secretary of Health and Human Services focused or fixated on expanding abortion, when we've got all these public health issues to deal with," Thune said. "How do you assure us that that's not going to be something that continues over from your time as attorney general?"
Becerra responded that he had not sued nuns but had rather sued the federal government. "In California, it's my job to defend the rights of my state and uphold the law," he said of his defense of the state's pro-abortion laws. "As I try to uphold the law, I recognize that people will look at these things a little bit differently."
At his confirmation hearing on Wednesday, Becerra was also asked about abortion.
Noting the practice of doctors to administer anesthesia to second-term unborn babies for fetal surgery, Sen. Chuck Grassley (R-Iowa) asked him if he believed it should be "routine" to also do so in cases of late-term abortion.
"Do you believe it should be routine to also give anesthesia to unborn children during late-term abortion to minimize the pain that they're capable of experiencing?" Grassley asked. Becerra responded that he would follow both the "science" and the "law" as health secretary.
"In my career of having worked to protect the health of all Americans, what I would do as secretary is what I've done as attorney general of our state, and that is I would follow the law, and expect others to follow the law," Becerra said.
Sen. James Lankford (R-Okla.) pressed him on the issue of religious freedom, asking if he would maintain an existing HHS office to uphold conscience protections in health care. The HHS Conscience and Religious Freedom Division, established in 2018, hears complaints by health care workers objecting to participating in procedures such as abortion or assisted suicide.
"I believe deeply in religious freedom," Becerra said, adding that as health secretary he would "respect" and "enforce" the law.
Lankford followed up, asking Becerra why his office was involved in religious freedom lawsuits including NIFLA v. Becerra.
"Right now, California is following the rules that were provided to us by the Supreme Court," Becerra said of the 2018 ruling. After the NIFLA ruling, the HHS civil rights office found that Becerra had previously violated federal conscience protections by enforcing the law; however, the HHS office simultaneously closed the case, noting that the violations occurred before the high court's decision.
Lankford noted that Becerra's was a "unique situation" of having sued the federal government, only to be nominated to head a federal agency.
"I will have to abide by ethics rules," Becerra said, noting that he would have to recuse himself in certain cases California is involved with at the state level.
Lankford emphasized it was "exceptionally important" to honor conscience rights of health care workers, on issues such as abortion and assisted suicide. "This is going to be a very significant issue," he said.
Becerra was also questioned by senators on the issue of abortion on Tuesday. He would not directly answer whether he, as health secretary, would support taxpayer-funded abortion, and did not explain why he previously opposed a 2003 ban on partial-birth abortions.
Becerra did indicate that he wanted to expand access to chemical abortions, saying that patients have found Telehealth advantageous during the coronavirus pandemic. In response to a question about federal restrictions on the abortion pill regimen, he said that remote health care practice is "something that we should really build on."
Pro-abortion groups have pushed for the U.S. Food and Drug Administration (FDA) to allow for remote prescribing and dispensing of the abortion pill regimen.
