A Biden administration effort to shore up health-care nondiscrimination protections for LGBTQ people is all but certain to wind up in court, but could be protected from being overturned because of its process to allow for religious conscience exemptions, attorneys said.
The Affordable Care Act’s Section 1557, which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by entities that primarily provide health care and receive federal funding, has been one of the most controversial parts of the landmark health-care law.
Regulations seeking to implement Section 1557 from both the Obama and Trump administrations are still tied up in court, and legal challenges have focused on religious protections required under the Religious Freedom and Restoration Act of 1993. RFRA prohibits government agencies from substantially burdening a person’s exercise of religion
The proposed rule from the Biden HHS, announced July 25, interprets “sex” to include gender identity and sexual orientation, which is in line with the US Supreme Court’s 2020 decision in Bostock v. Clayton County. It comes as Red State politicians have sought to implement a rash of policies targeting gender-affirming care for transgender children, moves that LGBTQ advocates argue could lead to bias and harm.
Health and Human Services “Secretary [Xavier] Becerra knows better than anyone that this is going to litigation,” so the HHS tried to show how it makes its decisions when it comes to religious exemptions, said Laura Durso, who was chief of staff at the HHS Office for Civil Rights until earlier this year.
In the proposed rule, the Office for Civil Rights, which enforces this provision of the ACA, suggested a process where health-care entities that fall under this rule can tell the department of “their views that the application of a specific provision or provisions of this part to them would violate federal conscience or federal freedom laws” and request an exemption or modification.
“One of the standing objections out there has been that some of these provisions are contrary to particular religious beliefs that are held by either particular faith movements or particular individuals. And so, I think there is an effort here to strike a balance,” said Leon Rodriguez, who ran the Office for Civil Rights under President Barack Obama. He’s now a partner at Seyfarth Shaw LLP.
“The U.S. Supreme Court has made it clear that a fact-sensitive, case-by-case analysis of such burdens and interests is needed under” the Religious Freedom and Restoration Act, the proposed rule said.
However, attorneys who represent religious organizations already say this process likely isn’t good enough.
Religious health organizations and workers want their protections under RFRA, not from the “grace of an agency that’s been threatening them nonstop for years on end,” said Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty, who represented plaintiffs in cases challenging both the Obama and Trump Section 1557 rules.
This doesn’t promise an exemption or even a response to a request for an exemption, Goodrich said.
In contrast, for the ACA’s contraception coverage mandate, the government granted an exemption to any religious entity that wanted it, Goodrich said.
The decision by the US Supreme Court in the contraception coverage mandate lawsuit required the HHS to exempt anyone who tells them that the provision violates their religious beliefs, Katie Keith, director of the health policy and the law initiative at Georgetown Law’s O’Neill Institute, said.
Joshua Blackman, a law professor at the South Texas College of Law, was skeptical of the HHS’ proposed approach.
“It’s not clear that Congress gave them the authority to make these sorts of fine line gradations by granting accommodations and exemptions. This was a common theme for the contraceptive mandate litigation,” Blackman said.
“I can see an attack saying something like, ‘It’s not the federal government’s business to decide whether my conscience objections or religious objections are legitimate or not.’” Rodriguez said.
However, he said these types of arrangements have existed in the employment space for issues like vaccine requirements, so “I’m not particularly troubled by that particular claim.”
Rules of the Road
In laying out a process for religious exemptions, the HHS was “trying to offer clarity” on the rules of the road when it comes to how the OCR enforcement process would work, Durso said.
Past litigation and feedback have shown that it isn’t clear, so the agency outlined a process for evaluating claims on a case-by-case basis, which is required under RFRA, she said.
The HHS also tried to show that it plans to be judicious and thoughtful instead of drawing conclusions without registering the facts, which are things a court would consider in a lawsuit, Durso said.
While attorneys see a legal challenge as inevitable, a definitive outcome on the proposal’s fate might be harder to come by.
ACA litigation “takes forever,” Blackman said. “It’s one of these weird things where nothing can actually get done because the Supreme Court’s approach to administrative law is to kick the can down the road and not let anything change.
“So I don’t know if this rule ever actually goes into effect.”
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