Conscience and Religious Freedom Division

Announcer:                        Welcome to the Federalist Society Practice Group Podcast. The following podcast hosted by The Federalist Society's Religious Liberties Practice Group was recorded on Monday, February 12, 2018, during a live Teleforum conference call.

Dean Reuter:                     Welcome to the Practice Group's Teleforum conference call, as today we discuss the latest developments at the Health and Human Services Office of Civil Rights. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at the Federalist Society. Please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded for use as a podcast in the future, and will likely be transcribed as well.

                                                We're very pleased to welcome a recurring guest, but I think it's his first time here in his new position, Mr. Roger Severino. He's the Director of the Office of Civil Rights at the U.S. Department of Health and Human Services. He's going to give us some opening remarks, about 15 or 20 minutes or so, and then we'll be taking questions from the audience. Before we begin, just a special note that this is a 30 minute Teleforum conference call, so we're going to try to get all of this in within 30 minutes. With that, Mr. Severino, the floor is yours.

Roger Severino:                Thank you very much, Dean, and pleasure to be back on with the Federalist Society. Um, as you mentioned, I am the Director of the Office for Civil Rights at HHS. Um, It's been a wonderful ride, since I began early last year. And one of the greatest pleasures I've gotten is working on an issue that I've been very focused on since I've arrived; and that is religious freedom and conscience protection. The administration is dedicated to protecting this first liberty, and to creating parity with every other civil right. And the actions that I've been able to take in my position as Director of the Office for Civil Rights has been to do precisely that, to create parity once again with this preeminent civil right with every other civil right that is enforced in my office.

                                                President Trump, on May 4th, issued an executive order on free speech and religious liberty where he promised to vigorously enforce our religious freedom protections; and, he said that we would no longer be bullying institutions and people of faith any longer. And, this was followed up by an attorney general guidance document, which I commend to all of you. I am sure there are many lawyers on the line. That outlines precisely what that means in implementation for agencies. It's a substantial document. It's very well written. And I commend it to all of you because those are effectively the guidelines for the agencies in implementing the executive order; because as part of the executive order, the president ordered the attorney general to issue this guidance.

                                                And this was followed up with recent actions and statements by the President himself at the recent State of the Union. He said, "In America, we know that faith and family, not government and bureaucracy, are the center of the American life. Our motto is in God we trust." And unfortunately, before too long, faith has been pushed to the margins, and many times by government itself; and HHS has, at times, been part of the problem instead of solution. And part of the efforts that we've been trying to do, at the Office of Civil Rights, is to change that narrative to make it such that religious freedom and conscience protection is vigorously protected and it is treated like every other civil right, and is no longer seen as something where the government itself may be infringing.

                                                So let me talk to you a bit about precisely what we've been doing and why. And this harkens back to the president's comments, to where faith and religion are in public life, where there should be an equal seat at the table, and the tradition of conscience protection itself really goes back to the founding. If you think about the Quakers being exempted from military service, even in times of war, that goes back to the very beginning, that solicitude of government to respect people's conscience rights. And that particular solicitude carried on straight through to the Vietnam war era where conscientious objection of people of all faiths was protected, and of all conviction as well. The Seeger case for those who are familiar with it; and in that, the Supreme Court gave a strong defense of conscience as being at the center of America's tradition. And I commend you to read that opinion as well. It's really quite moving at places.

                                                And we've seen this in other areas of American life as well. So, for example, doctors are not required to assist in an execution of convicted inmates, and that's a clear conscience protection that's been there for quite a long time. And in other areas as well, and ones directly related to many of the statutes that my office deals with, is dealing with the issue of abortion and assisted suicide. So after Roe v. Wade when the Supreme Court spoke on the question of the legality of abortion, Congress, in a bipartisan fashion, almost unanimously responded on the issue of conscience protection. So it began a series of amendments, the church amendments then later followed by the Coats-Snow amendment, and the Weldon amendment, providing that people, regardless of the legality of abortion, would not be required to participate, pay for, refer, or cover abortion. And as recently as 2010, under the Affordable Care Act, Section 1553, created similar protections on a question of assisted suicide. So we had these protections on the books for decades, and we've had instances of, of cases where, um, allegations of violations, and, uh, Cathy DeCarlo was a nurse who was forced to participate in abortion against her will and on pain of losing her job. We also know of nurse Thera Helvega who was not allowed to continue in the hiring process at a clinic because of her views on the question of abortion inducing drugs, et cetera.

                                                So these issues are examples, over the years, that we've seen where conscience has not been fully protected. And the question, rightly asked, is, "Well, what can be done about it? What has been done about it?" We have these federal statutes that have been on the books for decades. And it was at 2008 that the Office for Civil Rights issued regulations on some of these statutes, Church, Coats-Snow, and the Weldon amendment. Months after the regulations were issued, the incoming administration announced that they would be repealed and pared back. And in 2011, they were, so that only, the only thing that was left was the Office of Civil Rights could handle complaints effectively. It was all that was left, and believe that sent a message.

                                                So in the eight years preceding the election of President Trump, the Office of Civil Rights was receiving about one and a quarter complaints per year on these statutes. That's about 10. And since the election, our offices received over 40. And I think this is indicative of a couple things. I think, one, it shows that we weren't doing as good of a job as we could have been doing on, on, um, communicating to the public that yes, we're in fact, um, going to entertain these complaints, and, and, and we'll, we'll take them where the facts that the law takes us. That's what we should be doing as a law enforcement agency. And I think it also shows that there was a real issue out there. That, that lots of institutions and people feel that their rights have been violated, and are now bringing their complaints forward to us.

                                                And you may recall, that in 2016, uh, my predecessor had effectively announced, had closed an investigation under the Weldon amendment of California, and in so doing, stated some legal conclusions as to the ability to enforce Weldon under the circumstances of the case. And it got a significant amount of press coverage, and I think it sent a message that enforcement would be, um, perhaps not as vigorously done on those issues as certainly, I thought, would have been appropriate. Um, the, that opinion that was issued previously has been superseded. It is no longer the view of the Office for Civil Rights, and is no longer a legal opinion.

                                                So, we are taking complaints, um, uh, on the Weldon amendment, on every statute amendment, as well with every other civil rights statute; and we have communicated to the public that our intent is to take it wherever the facts and law lead us to, and we're not going to pre-judge anything. So that has had an effect, I believe, which is why we've seen that very significant increase in the number of complaints since the election of President Trump; and, uh, very recently announced a new division at the Office for Civil Rights. It's a conscience and religious freedom division. It parallels our civil rights division and health information privacy division. And it's tasked with enforcing the laws that we have on the books on conscience, just as we do with every other law that we have on the books. You know, we vigorously enforce every civil rights law. We vigorously enforce all our health information privacy laws. And this division gives it the focus and attention that this issue deserves, and we'll be there to handle the increase in complaints, as well. And just like our other divisions, it's functions are outreach, enforcement, and policy-making; and we're probably going to be quite busy, quite busy.

                                                So it's exciting times because it's seeking to institutionalize the protections of conscience and religious freedom, and it's in keeping with the attorney general guidance as to making these protections a reality; because if these protections aren't enforced, they're just empty words on paper. And we have to go back to the people behind this all, so America's doctors and nurses are dedicated to saving lives. And they shouldn't be bullied about out of the practice of medicine simply because they object to performing abortions against their conscience.

                                                This is a strong consensus opinion of the American public that we need more diversity in the health care space, not less. And one way of achieving more diversity is by having patients and providers of all backgrounds, and all faiths, of a variety of moral convictions, having an equal seat at the table, being equal partners with government, being able to discharge their duties. Because, we have to recall that the same things, and moral convictions, that lead, for example, a religious hospital to serve the poor, to serve the sick, to serve the needy, those same religious convictions lead them to retain their religious identity, um, as part of their work. And many consider it a ministry, that it's not something that could be put on and off. And the faith that drives people to help is the faith that also drives them to keep their identity, in all that they do. And our conscience protection statutes are there to make sure that there's space for everyone, and so that there is more diversity in the profession of healthcare, and that groups are not driven out because they interpret the Hippocratic oath to defend life, and not to take life, and those sorts of views are protected in our laws. So that's what the conscience and religious freedom division will be focused on.

                                                And very recently, we have issued a proposed rule. We issued a notice of proposed rule-making to reinvigorate the tools that, that are at our disposal for enforcing these vital laws. As I mentioned earlier, in 2008 this regulation actually was in effect. It was repealed in 2011, substantially; and now we are proposing to bring it back, um, to create these enforcement tools to create parity with other civil rights laws. And a lot of the provisions are really very standard when it comes to civil rights.

                                                So I was at the Department of Justice Civil Rights Division for seven years as a trial attorney, and Title VI was one of the statutes that I dealt with. And there are many measures within the regulations of these civil rights laws that were used, that are a model effectively, for the provisions in this new proposed regulation. So, for example, a requirement to write a notice in a place of work, and I'm sure you're all probably familiar with notices placed in break rooms, and things like that, at employers, which inform employees of their rights to not face discrimination in employment. And you'll see it in other federally-funded programs as well.

                                                Well, the proposed notice under the proposed rule would simply say you should add conscience protection, as well, where applicable; so the employees know that their conscience rights will be protected, so that members of the public would know their conscience rights are protected, so that providers would know that they're protections under law. Additionally, the requirements of certification and assurances. Again, this is standard for civil rights practice where, if you receive federal funds, you will agree to not violate civil rights laws. And again, this goes back to the point, all we're doing is proposing these tools for existing civil rights laws, some of which have been on the books for decades, over 40 years in some cases. And it's now time to give these enforcement tools to the statutes, and to give them their due.

                                                Another important factor to keep into account is where the scope of coverage of statutes involved under this proposed regulation are 25. There are 25 provisions in the health care space passed by Congress dealing with the issue of conscience and religious freedom. And many of which are focused on particular procedures, abortion in the Weldon amendment, and abortion and sterilization procedures in others, and, and they're very specific as to, um, what procedures you get moral and religious convictions protections for; and other statutes are related to particular funding streams. But the overall point is Congress has, on 25 different occasions, considered conscience and moral convictions important enough to protect in healthcare, that it would go out of its way to create these protections, to create rules of constructions, to create substantive protections, because it is that important.

                                                And what the proposed regulation does is, first it catalogs all these various statutes and where they apply and create the proper enforcement tool so that when folks are receiving federal funds under any of these statutes they are aware of the existing obligations to comply with the law, so that they do not discriminate; and, that's a term used in many of these statutes. They are anti-discrimination statutes, so they will not discriminate against the exercise of conscience and moral and religious convictions.

                                                So that's the [inaudible 00:15:29] and those proposed rule-making, in brief; and, we welcome everyone to issue, uh, submit public comments. It was a 60 day comment period, and it will be closing in March. And go on regulations.gov, and you could find the instructions on how to submit comments. And one of the things that I was, I did not appreciate as fully before I entered [inaudible 00:15:57] is really the importance of the public participating in the public comment process. This is democracy at work. Letting the people have their say and to inform the agencies for the rule making so all the comments will be read and taken into account and it will help us deliver a better product to the American people. We need to take everybody's view into account before any decisions are made on the regulation before finalization. It's not only required, but it's incredibly useful; but it's most useful when the public actually does participate and submit their comments.

                                                So to wrap up generally, the administration is dedicated to conscience and religious freedom; and we have taken some exciting actions with a new division and a proposed regulation to make sure that we now have parity with the preeminent civil rights of conscience and religious freedom to create parity with every other civil rights because for too long governments have, have been in the way, instead of helping, when it comes to these vital issues. So thank you, Dean, and I'll open the floor to comments, and actually to questions.

Dean Reuter:                     Terrific. We have about 10 minutes left for questions so let's open the floor. In a moment we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question, push the star button and then the pound button on your telephone.

                                                Once again, if you have a question, push the star button and then the pound button on your telephone. We've only got 10 minutes. I'm going to ask our callers to be as brief and concise as possible. It looks like we'll begin with one question today. If you'd like to join the queue, press the star button and the pound button. Now we've got two questions, three questions. So, let's turn to our first caller.

Caller 1:                                Yes. Thank you very much for doing this call. My name is Steven Casey. Quick question about the enforcing religious freedom and conscience protections. It seems that the current standard, the service standard, really devotes a lot of deference to a judge. And so, if y'all are coming from an enforcement and kind of a policy-making role, how do you see that balance of taking, taking, you know, questions of public policy out of the hands of the legislature and making those decisions within an office? Is that, does that align with your role or does it create some tension in trying to make those determinations?

Roger Severino:                Great. So we're bound by the laws, the laws that congress passed, and that is our guide stone, and of course, the constitution as well. Um, specifically in terms of enforcement and your question related to the roles of judges as part of that enforcement, the statutes we're talking about here are based on the spending clause authority of Congress so there are restrictions on the use of federal funding. So federal fund recipients ... Those are the cover entities; and, which, depending on the statute, can be quite broad. Um, a health care entity under Weldon, for example, is defined quite broadly. And those entities have obligations when they accept federal funds not to discriminate against that exercise of conscience.

                                                The Weldon amendment itself, I should note, doesn't actually say the word conscience. It doesn't list conscience as a condition for exercise or for getting protection. It just says that if, there cannot, a recipient cannot discriminate on the basis that the healthcare entity does not provide, pay for, apply coverage, or for abortions. So before it would ever get to a judge, it would have to go through the process of spending clause enforcement, which is how my office would operate if any complaint would be appropriately handled through that process. So, um, I don't know if you are referring to [inaudible 00:19:58] for example, of substantial burden analysis where judges get involved.

Caller 1:                                Yes, I am, in particular. That's my question, because that's [crosstalk 00:20:10].

Roger Severino:                I'm sorry. So the proposed regulation does not deal with the [inaudible 00:20:14]. They deal with very specific statutes that many of which focus on particular procedures, um, so that's actually not directly on point as to what's going on with the, ah, proposed regulations so.

Announcer:                        Still got a few minutes left. Two questions pending so let's take another call.

Caller 2:                                Good afternoon. This is David Forte. I came in a little bit late, uh, so forgive me if I've asked a question you've already covered. But there's a lot of movement now for anti-discrimination laws transgendered to people in regard to medical treatment as well as jobs and so forth. Does hormonal treatment or transgender operations, does the treatment of conscience work in that sort of procedure also?

Roger Severino:                So first, it takes a little bit of background. Section 1557 under the Affordable Care Act, um, prohibited discrimination on, among other things, sex, on the basis of sex. And our office had a regulation it finalized in 2016 that interpreted sex discrimination to cover gender identity. And you can look up the regulation, and it's a lengthy explanation of why they took that position. A federal judge has enjoined enforcement of that regulation, so our office cannot in fact enforce under Section 1557, a claim of gender identity discrimination under sex discrimination of Title Section 1557. And, it's a nationwide injunction, and we are abiding by that injunction to the fullest extent. Now, I will say that in the 40 so years since the Church amendments, I'm not aware of any example where somebody has used these protections that were passed in the wake of Roe v. Wade to apply, uh, on the, uh, to identity claims. So it's just one of those issues where we're receiving comments on during the rule-making and we welcome comments from everybody on these issues and in terms of enforcement, we do have an injunction we have to abide by as long as it's in place.

Announcer:                        Now we have three questions pending, uh, Roger, so you're doing a good job knocking these off, but the queue's getting longer so let's see if we can get through as many as possible. Go ahead, caller.

Caller 3:                                Hey, My name is [inaudible 00:22:52] and I'm an attorney in Florida. I have a question. Um, are there any other industries that would fall under this division's purview aside from healthcare?

Roger Severino:                Well, it is the Department of Health and Human Services, so any statute that deals with the human services side, um, could in the future. Now the proposed regulation we have are very much healthcare focused, but all our statutes that we enforce, I'm speaking generally in the Office for Civil Rights, some are on the health side, some are on the human services side. So there, I see no theoretical reason why, if there's a statute on the human services side that deals with conscience and religious freedom, that it wouldn't also be fully protected and enforced.

Caller 3:                                All right.

Announcer:                        Very good. Let's take another question.

Caller 4:                                Hi Roger, it's Monty Stewart. How enduring can we expect these laudable and beneficial changes to be. The administration is going to change as frequently as every four years and certainly every eight years and different administrations bring different world views. Are we going to be playing ping pong back and forth with regulations enacted or, not enacted, excuse me, and then, and then revoked?

Roger Severino:                Well, I certainly hope there isn't a ping pong. This should be an institution that lasts for the ages. It's just as if, as every other civil rights protection, there is no reason why this protection should not be given it's full due; and, in fact, there's very strong reasons why it should be given strong attention because it goes back, again, to what I said about our history, and the place of moral conviction and religious faith in public life, and our tradition of solicitude towards it and not excluding it, because that enhances diversity. And there's no ... It's a package of civil rights is the best way of thinking about it, the full spectrum of anti-discrimination laws, um, are mutually reinforcing, and this has been a consensus position for a very long time.

                                                It's not a surprise that there are 25 statutes then that protect conscience that congress has passed. These are the people's representatives in bipartisan fashion. The Weldon amendments have been signed by republican and democrat presidents year, after year, after year. And this shows that the American public are at a place where they, regardless of one's views on the legality of abortion, they believe that one shouldn't be forced to participate or pay for an abortion against their will. And you're going to find strong public support for that; and because there is such strong public support; and because we have our laws that have been on the books; and because there are real instances of violations; and because we have a large number of complaints coming in, too, all these things coming together are strong reasons for making this a permanent feature because it's in our laws, right?

                                                It's, our laws, and longstanding laws, that aren't going to be going anywhere; and, if anything, they may be strengthened. I mean, you have a conscience protection act that's now currently being considered on capitol hill and you have a President who's dedicated to protecting religious freedom and conscience, um, so when you have all of the these things coming together there's no reason why it shouldn't be part and parcel of the fabric of our understanding of civil rights. It already is. It already is, and I think at an intuitive level, people in the American public know this.

                                                And another thing to consider is, um, much of the, ah, temptation to try to say that there may be some sort of conflict of civil rights is, um, much of it is creating problems that we just have not seen. I mean these statutes have been on the books for decades in some cases. And, um, we're just not seeing the conflicts that some people are saying may be coming up. In 2008 certainly that wasn't, um, something that was coming up that was part of the rule-making justifications; and if you look into the rules we're making now, you'll see the phrase abortion come up time and time again because many of the statutes specifically mention that procedure. And what we see I think, is that once we have a new division, once we get a new regulation and things are working, and people see that yes, this is actually going to help, um, enhance diversity of our healthcare system so that religious hospitals will have an equal seat at the table, then it will be very hard I hope, um, to ever walk back from it.

Caller 4:                                Thank you.

Announcer:                        We do have one question pending, uh, but it looks like we're out of time and respect for our expert, uh, our guest today, I think we're going have to bring the call to a close, but I do want to give you, Roger Severino, a chance to express any final thought before we go.

Roger Severino:                Sure. So we don't force doctors to administer lethal injections on criminals; and we've recently said if you receive federal funds and ACA, we shouldn't be forcing doctors to perform assisted suicides. And these are mainstream positions that the American public and Congress in bipartisan fashion have sought to protect in law. And all my office is dedicated to doing is enforcing the law, and that means all our laws, all our civil rights laws, our health information privacy laws, and our conscience and religious freedom laws on the books. And we welcome public comment, again, on our proposed rule; and the commentary we will receive all will be considered very carefully, and we hope to do some vigorous enforcement, um, wherever the facts and the laws lead us because we are now open for business.

Announcer:                        Well, thank you so much, Roger Severino. We certainly appreciate this. It sounds utterly reasonable. I'll be curious to see how things unfold going forward and I'd invite you back. Please feel free to avail yourself to this forum in the future. I also want to thank our audience for dialing in and for their thoughtful questions as well. Uh, please, uh, remember that to check the Federal Society's website and monitor your emails for the next scheduled Teleforum conference call, but until that next call, we are adjourned. Thank you very much, everyone. Thank you for listening. We hope you enjoyed this practice group podcast.