Proposed changes to ACA could mandate abortions and gender transition procedures

September 30, 2022

U.S. Department of Health and Human Services (HHS)
Office for Civil Rights (OCR)
Hubert H. Humphrey Building
Room 509F
200 Independence Avenue SW
Washington, DC 20201

Attention: 1557 NPRM (RIN 0945-AA17)

Submitted online via: https://www.regulations.gov.

 

Dear HHS,

I am submitting comments on behalf of the Texas Catholic Conference of Bishops (TCCB). The TCCB is the public policy voice of the Roman Catholic Church in Texas. As bishops representing almost 9 million Catholics in Texas, the TCCB advocates for healthcare that is oriented towards honoring the dignity of each person while respecting the religious liberty and conscience rights of medical professionals.

The Catholic Church believes “life and physical health are precious gifts entrusted to us by God” and healthcare is a basic necessity for human flourishing.[i] Furthermore, the Catholic Church is one of the largest providers of healthcare. According to the Catholic Health Association (CHA), the Church operates more than 600 hospitals and 1,600 long-term care and other health facilities in all 50 states, including numerous health care facilities in Texas.[ii] Therefore, the Church also speaks with practical experience in the healthcare space.

The TCCB appreciates this opportunity to submit comments on HHS’s proposed rules, published in 87 Fed. Reg. 47824 (Aug. 4, 2022), on Section 1557 of the Affordable Care Act (ACA) (Section 1557), which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. While there are many laudable provisions in the Notice of Proposed Rulemaking (NPRM)[iii] such as provisions to increase access to healthcare for limited English proficient (LEP) persons and to address healthcare disparities for underserved communities, our comments primarily concern two aspects of the proposed rules: its inclusion of various sexual orientation and gender identity (SOGI) provisions and its repeal of 45 CFR 92.6(b), which was included in the 2020 rule that amended Title IX regulations to expressly include Title IX’s statutory abortion neutrality provision. As currentlywritten, the proposed HHS Section 1557 rule could function as both an abortion mandate and a gender transition procedure mandate.

At the outset, we affirm all the comments submitted by the United States Conference of Catholic Bishops (USCCB), the National Association of Catholic Nurses (NACN), the Catholic Medical Association (CMA), the Catholic University of America (CUA), the National Catholic Bioethics Center (NCBC), and the Council for Christian Colleges and Universities (CCCU), including those related to abortion, gender identity, patient privacy, and religious freedom.[iv]

We also wish to express our care and concern for those persons who experience same-sex attraction or gender dysphoria. Such persons must be accepted with respect, compassion, and sensitivity and every sign of unjust discrimination toward them should be avoided. As the bishops’ chairmen stated on behalf of the USCCB in response to the proposed rulemaking:

Catholic health care ministries serve everyone, no matter their race, sex, belief system, or any other characteristic. The same excellent care will be provided in a Catholic hospital to all patients, including patients who identify as transgender, whether it be for a broken bone or for cancer, but we cannot do what our faith forbids. We object to harmful procedures, not to patients. [emphasis added] [v]

In that regard, the NPRM would affect our covered health programs and activities under Section 1557 of the ACA by requiring compliance with civil rights law[vi] construed by the agency to include sexual orientation and gender identity (SOGI). The proposed rules address nondiscrimination on the basis of “sex” by reading into that word novel conceptions of gender identity and sexual orientation. This new Section 1557 regulation would have legal binding force on Catholic healthcare providers in Texas. Among other provisions, covered Catholic healthcare providers would have to set up policies and procedures, give notice requirements, establish grievance processes, and be subject to damages for any violations related to Section 1557.

The proposed rules adopt a view of the human person that does not acknowledge the meaning and importance of sexual difference in an effort to advance gender ideology, a construct that denies biological sex and is divorced from scientific and ontological reality. Categorically refusing to perform, pay for, or provide counsel on so-called “gender transition or other gender-affirming care” (e.g., gender transition/reassignment surgeries, sterilizations, puberty suppression prescription drugs, or cross-sex hormones) would be considered discrimination.[vii] However, Catholic healthcare providers do not consider such procedures to be authentic healthcare in that they do not help persons to harmonize such feelings of dissonance and attractions within a broader context of integral personal development.[viii] In reality, these procedures often are irreversible, interrupt natural bodily developmental processes, and can result in infertility and other serious health risks - especially for children.[ix]

The proposed rulemaking would conflict with Texas law in various ways. For example, all persons in Texas are protected under general provisions that guarantee religious liberty and conscience rights under our state religious freedom law that prohibits government entities from substantially burdening a person’s free exercise of religion.[x] In specific contexts, medical providers (e.g., physicians, nurses, staff members, or employees of a hospital or other health care facility) possess protections from having to, for example, perform or participate in abortions.[xi] Child-welfare providers are also protected from having to provide, facilitate, or refer a person for services that conflict with the provider’s sincerely held beliefs.[xii]

Apart from state-level statutory protections, HHS states in the proposed rulemaking that they will comply with the federal Religious Freedom Restoration Act (RFRA) and all other legal requirements related to religious liberty and conscience[xiii] and that recipients may file complaints with OCR if a specific provision or provisions of the proposed rule would violate federal conscience or religious freedom laws. But these assurances mean little because the department is currently engaged in 3 court challenges related to Section 1557 as the NPRM itself notes.[xiv] Additionally, the NPRM maintains that it would be in the OCR’s discretion to determine “at any time” whether a covered entity is wholly exempt from or entitled to a modification of the application of certain provisions of the rules, or whether modified application of the provision is required under a federal conscience or religious freedom law.

However, religious liberty is a not a concession from the beneficence of a government agency but a protected right under the First Amendment of the U.S. Constitution and statutes like RFRA. The proposed rules not only misread the Bostock v. Clayton County decision, which was limited to the Title VII employment context, but also minimizes the religious liberty interests that Catholic healthcare providers have.[xv] Forcing Catholic healthcare facilities and medical professionals to choose between their work or violating their sincerely held religious beliefs or requiring them to provide or pay for procedures that they find unconscionable is unconstitutional.[xvi] Furthermore, if these rules were to go into effect, it could also run afoul of the First Amendment’s Free Speech Clause and hamstring religious expression in Catholic healthcare ministries.[xvii]  In any event, even if Bostock could be read to apply to other contexts, the court’s opinion in that case recognized: “RFRA oper­ates as a kind of super statute, displacing the normal oper­ation of other federal laws, it might supersede Title VII’s commands in appropriate cases.”[xviii]

Our second concern relates to the portion of the NPRM that would repeal 45 CFR 92.6(b), a provision in the 2020 Rule that expressly included Title IX’s statutory abortion neutrality provision.[xix] That provision does not require or prohibit any person, or public or private entity, to provide or pay for “any benefit or service, including the use of facilities, related to an abortion.” The Department says it believes it could be beneficial to include a provision specifically prohibiting discrimination on the basis of pregnancy-related conditions as a form of sex-based discrimination. However, the Department’s definition would encompass  “termination of pregnancy” (i.e., abortion).

For example, while the Department notes various statutory provisions related to conscience rights in the abortion context, they note that in some emergency situations an abortion may be considered “stabilizing treatment” under Emergency Medical Treatment and Active Labor (EMTALA) “notwithstanding any directly conflicting state laws or mandate that might otherwise prohibit or prevent such treatment. [emphasis added]” First, we dispute the premise that abortion (i.e., intentionally targeting unborn life for termination as opposed to other therapeutic interventions) is ever medically necessary. Second, this exact issue was recently addressed in Texas and the Administration’s HHS EMTALA guidance was enjoined from being enforced in Texas because the guidance went beyond EMTALA’s authorizing text.[xxi]

Additionally, the recent Dobbs v. Jackson Women’s Health Organization decision suggests that the appropriate standard that will govern if abortion regulations undergo a constitutional challenge should be rational-basis review. State laws regulating abortion, like other health and welfare laws, are entitled to a strong presumption of validity.[xxii] Smuggling in an emergency abortion exception via federal rulemaking would be an end-run around the states.  Furthermore, it would also interrupt the return of this issue to the people and their elected representatives in the democratic process.[xxiii] Federal rulemaking should not step outside the bounds of that newly controlling precedent.

The TCCB stands ready to work with governmental partners to ensure improved access to healthcare for all, including for patients who struggle with gender dysphoria and for expectant mothers and children in need. As our nation continues to recover from the COVID-19 pandemic, we join the Holy Father, Pope Francis, who stated in his 2022 World Day of the Sick address: “I wish to reaffirm the importance of Catholic healthcare institutions: they are a precious treasure to be protected and preserved; their presence has distinguished the history of the Church, showing her closeness to the sick and the poor, and to situations overlooked by others.”[xxiv] Ensuring that our nation respects the religious liberty and conscience rights of healthcare professionals would contribute to this end.  Thank you for your consideration.

Sincerely,

Jennifer Carr Allmon
Executive Director, Texas Catholic Conference of Bishops

[i] Catechism of the Catholic Church, #2288.

[ii] Catholic Health Association, U.S. Catholic Healthcare 2022 Fact Sheet (Jun. 2022), available at https://www.chausa.org/docs/default-source/default-document-library/the-strategic-profile.pdf.

[iii] Proposed Rules for “Nondiscrimination in Health Programs and Activities,” (to be published Aug. 4, 2022) (to be codified at 42 CFR Parts 438, 440, 457, and 460;  45 CFR Parts 80, 84, 86, 91, 92, 147, 155, and 156), available at https://public-inspection.federalregister.gov/2022-16217.pdf.

[iv] United States Conference of Catholic Bishops, et al., Letter to Department of Health and Human Services Office for Civil Rights on Nondiscrimination in Health Programs and Activities RIN 0945-AA17 (Sep. 7, 2022), available at https://www.usccb.org/sites/default/files/about/general-counsel/rulemaking/upload/2022.comments.1557.regulations.final_.pdf.

[v] United States Conference of Catholic Bishops, Bishop Chairmen Condemn Harmful Regulations Forcing Gender Ideology and Potentially Abortion on Health Care Workers and Religious Hospitals, (July. 27, 2022), available at https://www.usccb.org/news/2022/bishop-chairmen-condemn-harmful-regulations-forcing-gender-ideology-and-potentially.

[vi] Specifically, Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973.

[vii] NPRM proposed paragraph (b)(4).

[viii] See e.g., United States Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services (ERDs), 6th Ed. (Jun. 2018), available at https://www.usccb.org/resources/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06_3.pdf (“Catholic health care organizations are not permitted to engage in immediate material cooperation in actions that are intrinsically immoral, such as abortion, euthanasia, assisted

suicide, and direct sterilization.”); Vatican Congregation for Catholic Education, “Male and Female He Created Them” Towards a Path of Dialogue on the Question of Gender Theory,  at 35 (2019), available at https://www.vatican.va/roman_curia/congregations/ccatheduc/documents/rc_con_ccatheduc_doc_20190202_maschio-e-femmina_en.pdf ([Education on sexuality and affectivity] means “learning how to accept our body, to care for it and to respect its fullest meaning.”).

[ix] See e,g., American College of Pediatricians, Gender Dysphoria in Children, (Nov. 2018), available at https://acpeds.org/position-statements/gender-dysphoria-in-children (citations omitted).

[x] See Tex. Civ. Prac. & Rem. Code, Chapter 110.

[xi] See Tex. Occ. Code, Chapter 103.

[xii] See Tex. Hum. Res. Code, Sec. 45.004.

[xiii] See e.g., the Coats-Snowe Amendment, the Church Amendments, Section 1303 of the ACA, Section 1554 of the ACA, and the Weldon Amendment.

[xiv] NPRM at 13.

[xv] 590 U.S. ___ (2020).

[xvi] Cf. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____ (2014) (slip op., at 35) (holding unconstitutional a contraceptive mandate that required a closely held corporation to provide certain contraceptives in violation of their conscience); Fulton v. Philadelphia, 593 U.S. ____ (2021) (slip op., at 25) (Alito, J., concurring) (holding unconstitutional a city policy that forced a church charity to either engage in conduct that the Church views as contrary to a traditional understanding of marriage or to abandon caring for orphaned and abandoned children).

[xvii] See e.g., Kennedy v. Bremerton, 597 U.S. ___ (2022) (slip op., at 11). (“Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities.”).

[xviii] 590 U.S., at __-__ (slip op. at 32).

[xix] See 45 CFR 86.18(b).

[xx] See, e.g., John A. Di Camillo and Jozef D. Zalot, Medical Interventions During Pregnancy In Light of Dobbs, Nat’t. Catholic Bioethics Center on Health Care and the Life Sciences, Vol. 47 No. 8 (Aug. 2022), available at https://static1.squarespace.com/static/5e3ada1a6a2e8d6a131d1dcd/t/62ffd37462c1db0164bdbd2c/1660932980925/E%26M_August_22_update.pdf; Amicus Brief of the Catholic Health Care Leadership Alliance (CHCLA), et al., in State of Texas v. Becerra, Case 5:22-cv-00185-H (N.D. Texas 2022) at 10, available at https://static1.squarespace.com/static/5e3ada1a6a2e8d6a131d1dcd/t/6308d97eb5d7e63d95e021e1/1661524350670/DE+70+-+Amici+Brief+of+CHLA+et+al.pdf (“Defendants’ have created unnecessary confusion given the fact that everyone agrees that medical treatments to save the life of the mother that unintentionally cause the death of the unborn child are permitted. The confusion arises in that, despite there being treatment options for all pregnancy complications that do not involve abortion, Defendants insist that all health care providers have a duty under EMTALA to perform an intentional abortion.”).

[xxi] State of Texas v. Becerra, No. 5:22-CV-185-H (N.D. Texas 2022), available at https://www.documentcloud.org/documents/22187203-txemtalarlg082322.

[xxii] 597 U.S. ___ (2022) (slip op., at 77).

[xxiii] 597 U.S. ___ (2022) (Kavanaugh, J., concurring) (slip op., at 11).

[xxiv] Pope Francis, Message for the Thirtieth World Day of the Sick, Vatican Dicastery for Communication (Feb. 11, 2022), available at https://www.vatican.va/content/francesco/en/messages/sick/documents/20211210_30-giornata-malato.html.