HHS draft memo reveals effort to revoke Trump-era religious liberty protections

A draft memo from the Department of Health and Human Services indicates the agency is taking under consideration a proposal to revoke the authority given to the Office of Civil Rights by the Trump administration to prevent religious liberty infractions, which has touched off concerns about conscience protections under President Biden’s HHS secretary, Xavier Becerra.

First reported by Fox News, the memo is aimed at revoking a pair of actions linked to the First Amendment dating to earlier this year, as well as the Religious Freedom Restoration Act (RFRA), which bars any federal government infringement on the exercise of religion.

On Dec. 7, 2017, in response to the Trump administration’s overall efforts to ramp up religious protections, then-Attorney General Jeff Sessions cited an executive order from the president on the issue when he provided Executive Branch agencies with a lengthy list of guidelines pertaining to the RFRA. They included claims of freely exercising religion and contraceptive coverage in insurance plans, as well as other issues.

At the time, HHS followed up Sessions’ memo by giving OCR power, among other things, to undertake RFRA compliance reviews and “initiate such other actions as may be necessary to facilitate and ensure compliance with RFRA.”

However, those protections now appear to be on the verge of being rolled back by the Biden administration.

According to Fox News, the internal HHS memo is likely to be sent this week, noted a source familiar with the situation. The memo will argue that the Trump administration likely overextended OCR’s authority “and signals an intent to repeal Trump-era initiatives,” the network noted.

The memo comes from OCR Director Lisa Pino, who is a political appointee announced in September and is addressed to Becerra. Pino is a former Obama administration official who previously served as executive deputy commissioner at the New York Department of Health.

“Prior to the delegation in 2017, no division was singularly responsible for the Department’s compliance with RFRA or the First Amendment,” the draft memo says, according to Fox News.

“That model recognized that all components of HHS had a responsibility for compliance and that OGC [Office of General Counsel] was a central partner in providing key legal advice on RFRA and defending the Department when RFRA claims were raised. Rescinding the delegation to OCR does not lessen the commitment of the Department to compliance, but ensures that it is not misused by any one agency to enact a broad, proactive agenda,” the memo continues.

During his confirmation hearings, Becerra assured senators that he would move to protect religious liberties, but the memo is now casting new doubts on his claim.

“HHS centralized authority over religious freedom claims because the laws weren’t being enforced and because that’s how we enforce every other civil right,” said Roger Severino, who led OCR in the Trump administration, on Tuesday, accusing Becerra of going back on his pledges.

“Without dedicated staff responsible for investigating religious freedom complaints, HHS will return to trampling people’s rights as before — just ask the Little Sisters of the Poor,” Severino, now a senior fellow at the Ethics and Public Policy Center, told the network.

“Because Becerra was twice found to have violated conscience protection laws by OCR, he has no business deciding its religious freedom authorities given his massive conflict of interest,” he noted further.

“Becerra told Congress that he values religious freedom and that nothing will change with OCR concerning enforcement. His actions since then prove that he lied and this move would put an exclamation point on his anti-religious hostility,” Severino added.

Missy Halsey


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