Biden's HHS revokes certain faith-based exemptions, rolls back religious liberty enforcement

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The Department of Health and Human Services (HHS) has revoked certain faith-based exemptions for child welfare agencies as part of a broader move to roll back Trump-era protections on religious liberty.

Last week, Fox News reported on HHS' interest in rescinding the Office of Civil Rights' (OCR) authority to enforce the First Amendment and Religious Freedom Restoration Act (RFRA), a landmark statute utilized in the former administration's policies on sexuality and gender. An internal memo showed OCR Director Lisa Pino arguing that the delegation of authority led to improper decisions on those issues.

Secretary of Health and Human Services Xavier Becerra answers questions at a Senate Health, Education, Labor and Pensions Committee hearing to discuss reopening schools during the Covid-19 pandemic on Capitol Hill Sept. 30, 2021. (Greg Nash- Pool/Getty Images)

As of Wednesday, that revocation was noted in the Federal Register, and HHS had removed several waivers for faith-based organizations such as foster care agencies that refuse to work with same-sex couples.  HHS said in a press release that the waivers, issued to South Carolina, Texas and Michigan, were overly broad and "inappropriate." 

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"Our action ensures we are best prepared to protect every American's right to be free of discrimination," HHS Secretary Xavier Becerra said in a press release Thursday. "With the large number of discrimination claims before us, we owe it to all who come forward to act, whether to review, investigate or take appropriate measures to protect their rights. At HHS, we treat any violation of civil rights or religious freedoms seriously."

HHS' latest move, which applies to groups that receive federal funding, will likely provoke greater congressional scrutiny as members have already criticized Becerra and introduced legislation to block his actions.

The exterior of the U.S. Department of Health and Human Services building Aug. 15, 2006 in Washington, D.C.    ( Alex Wong/Getty Images)

"President Biden and Secretary Becerra are ignoring the First Amendment," Sen. James Lankford, R-Okla., said in a statement provided to Fox News. "This action solidifies that Secretary Becerra will not keep the commitment to protect religious freedom for every American that he made during his confirmation hearing."

Roger Severino, who led OCR under Trump and who currently serves as a senior fellow at the Ethics and Public Policy Center, told Fox News, "These outrages are the latest in a long line of attacks on religious freedom that began the day Biden took office and likely will not end until he and his radical HHS Secretary no longer have the reins of power."

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He added that "HHS gratuitously stripped its Office for Civil Rights of the power to accept religious freedom complaints, leaving people with no other option but to sue when HHS inevitably tramples on their rights for lack of any internal checks."

The RFRA delegation came on Dec. 7, 2017, in response to the administration's broader efforts to beef up religious liberty protections. HHS granted OCR authority to, among other things, conduct RFRA compliance reviews and "initiate such other actions as may be necessary to facilitate and ensure compliance with RFRA." Becerra revoked both that delegation and another issued on Jan. 15, 2021.

HHS did not immediately respond to Fox News' request for comment on Wednesday. Becerra's filing in the Federal Register echoes his department's memo in arguing that authority should be dispersed among HHS' various agencies.

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"Department components, in consultation with OGC [Office of General Counsel], have the responsibility, and are best positioned, to evaluate RFRA-based requests for exemptions, waivers and modifications of program requirements in the programs they operate or oversee." the filing states.

Severino also pointed to the Supreme Court's unanimous decision in Fulton v. City of Philadelphia. In that case, the court issued a narrow opinion in favor of a Catholic foster agency that sought to challenge Philadelphia's nondiscrimination ordinance requiring it to serve same-sex couples. The case was remanded to a lower court and recently settled with Catholic Social Services maintaining an exemption.