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Biden’s HHS Nominee Becerra to Clash With Religious Right

Feb. 22, 2021, 10:41 AM

Xavier Becerra will be a lightning rod for the religious right if he’s confirmed to lead the Department of Health and Human Services.

Faith-based advocacy groups are bracing for the agency to reverse course on controversial steps the Trump administration took to protect, and expand, religious liberties. Under Becerra’s leadership, the agency is expected to walk back rules that prohibit federally funded providers from referring women for abortions and reinstate rules that allowed health-care workers to refuse to treat LGBT patients.

Any step to withdraw those rules will lead to litigation, legal scholars say.

Some critics are questioning why Biden would choose an aggressive litigator like Becerra—who as the attorney general of California went head-to-head with the Trump administration on such rules—to lead the agency when the country is in the middle of the Covid-19 pandemic and federal funding is needed for testing and vaccines.

“At a time of a true national health emergency, why are we enlisting someone who is such a lightning rod in the areas of abortion and religious freedom?” asked Helen Alvaré, a professor of law at George Mason University’s Antonin Scalia Law School.

“Why would you pick someone who is about to embroil HHS in hundreds of millions, if not more dollars, in lawsuits?”

Alliance Defending Freedom, which sued Becerra and won in 2018, is already watching the agency and the administration closely.

“If they start violating conscience or forcing organizations, or individuals to speak messages that violate their religious convictions, ADF is going to stand against that just like we did when it was happening in California,” said Matt Sharp, senior counsel with the faith-based legal advocacy group.

A spokesperson for the Biden transition team wouldn’t comment on the record on the assertion Becerra would tie the agency up in costly litigation.

Becerra is scheduled to be questioned by the Senate Health, Education, Labor and Pensions Committee during his first of two confirmation hearings Tuesday. He is scheduled to face the Senate Finance Committee on Wednesday, which will vote to send his nomination to the Senate floor for a vote. His confirmation seems likely now that Democrats control the Senate.

‘Cause for Concern’

On behalf of the National Institute of Family and Life Advocates (NIFLA), ADF challenged Becerra on a California law that required pregnancy care centers—often run by faith-based groups—to notify women that California provides free or low-cost abortions, and provide a number for them to call. The fight made it all the way to the U.S. Supreme Court, which struck down the law in a 5-4 decision. The court sided with NIFLA, holding the notices likely violated free speech rights under the First Amendment.

Last July, the Supreme Court tossed out orders blocking rules the Trump administration issued that expanded employers’ ability to opt out of the Obamacare mandate requiring health insurance plans to cover birth control if the employers have a religious or moral objection.

In Little Sisters of the Poor v. Pennsylvania, the court ruled 7-2 that the agencies have broad discretion under the Affordable Care Act to craft these exceptions, but ordered the lower courts to look at whether the exceptions were reasonable or given adequate consideration.

California brought its own case challenging the exceptions, which is still pending in the U.S. District Court for the Northern District of California. Becerra could moot that challenge and others if the HHS limits the exceptions, but that policy reversal is likely to also face litigation.

“The history we’ve seen from him and some of the statements and priorities indicated from the Biden administration give us great cause for concern that we’re going to be fighting many of those battles again,” Sharp said.

Lawsuits Likely

As the face of the HHS, Becerra will be the lead defendant in litigation challenging agency actions.

“I really believe the Biden administration is going to make significant changes in health and human services,” said Caroline Mala Corbin, a professor of law at the University of Miami School of Law. “I do not doubt those changes will result in all kinds of lawsuits and will be condemned by religious conservatives.”

When Biden announced Becerra as the nominee in December, he said the California attorney general had spent a career fighting to expand access to health care, reduce racial disparities, and protect the Affordable Care Act.

Sylvia Burwell, who served as the HHS secretary under President Barack Obama, praised Biden for the pick, calling Becerra’s understanding of key relationships on Capitol Hill and focus on high-quality execution invaluable in fighting Covid-19.

“Xavier knows the ‘kitchen table’ issues that are at the heart of HHS & his leadership will make a difference in the lives of Americans,” she tweeted Dec. 6.

Clashes could come over the scope of Obamacare’s protections against sex discrimination. The HHS is reassessing a Trump administration rule that specifically excluded gender identity and termination of a pregnancy from the federal protections. President Joe Biden issued an executive order on day one directing his agency heads to review all existing orders, regulations, guidance, and agency actions to ensure they protect people from discrimination on the basis of gender identity or sexual orientation.

The HHS is also taking a look at a rule the Trump administration issued to let health-care workers refuse a patient medical care if they have a religious or moral objection to treating them. Federal courts have agreed to put litigation over the conscience rule and the scope of Obamacare’s anti-discrimination protections on hold to give the new leadership at the HHS time to review the rules.

If Becerra narrows or rolls back the conscience rule, “I expect to see a lot of litigation from people who would like to refuse to provide medical care due to their religious beliefs,” Corbin said.

Health law scholars also anticipate more litigation over abortion access and not necessarily because of the Biden administration, but because President Donald Trump created a judiciary that’s more conservative.

“That still leaves the door open to organizations that are hostile to abortion to work with states to create model legislation that decreases access to abortion and then to allow that to be tested in the courts,” said Nicole Huberfeld, an Edward R. Utley professor of health law at Boston University’s School of Public Health and professor of law at its School of Law.

Becerra could potentially be the person to tell states they can’t exclude Planned Parenthood from treating Medicaid patients, she said.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Karl Hardy at khardy@bloomberglaw.com

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