What to Expect From a Becerra HHS on Abortion and Religious Freedom

Experts weigh in on the conscience protections and abortion restrictions that are likely at risk under newly-confirmed HHS Secretary Xavier Becerra.

Xavier Becerra, nominee for Secretary of Health and Human Services, answers questions during his Senate Finance Committee nomination hearing on February 24, 2021 at Capitol Hill in Washington, DC.
Xavier Becerra, nominee for Secretary of Health and Human Services, answers questions during his Senate Finance Committee nomination hearing on February 24, 2021 at Capitol Hill in Washington, DC. (photo: Greg Nash / AFP/Getty)

WASHINGTON — On the same day that former California Attorney General Xavier Becerra was confirmed as secretary of the Department of Health and Human Services, the agency announced a rule change: doing away with a Trump administration action that barred Title X funding recipients from referring for abortions. 

And according to pro-life policy experts and a former HHS official, this move is likely the first of many actions from the department under Becerra to expand abortion and restrict religious freedom. 

Roger Severino, the outgoing director of the U.S. Department of Health and Human Services’ Office of Civil Rights who is now with the Ethics and Public Policy Center (EPPC), told the Register Tuesday that Becerra “was the No. 1 one pick of Planned Parenthood. He went to bat for Planned Parenthood every chance he had as Attorney General of California and we should expect more of the same in his role as Secretary of HHS.” 

Becerra was involved in many cases involving abortion where he fell on the side of Planned Parenthood. He vigorously defended a 2015 law requiring pro-life pregnancy centers in California to “disseminate to clients” a message promoting public programs with “free or low-cost access” to abortion and contraceptive services.” A 5-4 Supreme Court decision in 2018 determined that law violated the First Amendment. 

As California attorney general, he also decided to criminally charge pro-lifer David Daleiden, whose undercover videos alleging the trafficking in aborted baby parts by Planned Parenthood and others led to a Congressional inquiry. The Los Angeles Times editorial board called the charges “disturbingly aggressive.”

“I have personal experience with Becerra because I twice found him in violation of conscience protection laws on the issue of abortion,” Severino said. “He is a repeat offender who cost his state $200 million in Medicaid funds because he was forcing nuns to buy abortion insurance ... and he refused to back down after we issued our notice of violation.” 

Severino was referencing a 2014 requirement by California’s Department of Managed Healthcare, which Becerra enforced that all health insurers cover elective abortions in their plans. The Trump administration HHS Office of Civil Rights to disallowed $200 million in federal Medicaid funds going to the state due to the violation of federal conscience laws after they received complaints from a Catholic order of religious sisters and a non-profit Christian Church.


Likely Action on Chemical Abortion

Regarding some actions that may come out of the HHS in the near future, Severino told the Register that he is “concerned that they will loosen the safety protocols that accompany chemical abortions.” 

The Food and Drug Administration has restricted the abortion drug mifepristone under its “Risk Evaluation and Mitigation Strategies” drug-safety program since 2000.  Severino said the regulations “are there for a reason — because these are dangerous drugs that are being used to end a human life. You can’t expect a drug that’s that powerful not to have potential negative side effects on the women taking it, not to mention the child in the womb. The protocols are put in place to make sure that, to the extent possible, when the drugs are administered that they’re administered in the appropriate manner by people qualified to do so, so that if there are complications then the woman is protected and has the help she needs.”

“There have been reported cases of complications, there have been some reported cases of deaths,” he added. “It would be dangerous for the Biden administration to sacrifice women’s safety simply because they want to push the abortion agenda to the maximum extent possible.”

Tom McClusky, president of March for Life Action, told the Register that the issue of chemical abortions will likely be coming up soon under the Becerra HHS, as a federal appeals court will be hearing a challenge to the Trump administration’s decision to keep the FDA protocols in place during the pandemic, and the Biden administration Department of Justice has until April 7 to say if it plans to keep enforcing those rules.

McClusky thinks it likely that the restrictions will be loosened, as it has “become more and more of a priority for those on the pro-abortion side because so many states are passing pro-life laws, they see this is as their way around it because if you’re in Texas and you can sit down at a computer and talk with an abortionist or even a nurse practitioner in New York City who then will mail you some pills.”

As California attorney general, Becerra filed a multi-state amicus brief in a challenge to the FDA protocols. 

“As communities across the country — and HHS itself — work to promote telehealth to prevent the spread of coronavirus, women’s healthcare must not be excluded,” he said at the time. “The FDA’s restrictive policy on Mifepristone targets women — and only women — forcing them to go in person to a doctor’s office to retrieve their prescription. During this unprecedented pandemic and stay-at-home orders, the FDA unnecessarily and irresponsibly puts women’s lives at risk.”


Undoing Trump’s Pro-life Policies

McClusky also anticipated “changes” in the field of fetal tissue research given Becerra’s record on the issue. The Trump administration decided to halt new fetal tissue research at NIH facilities in 2019 and established the NIH Human Fetal Tissue Research Ethics Advisory Board. 

In October, Becerra led a coalition of 22 state attorneys general urging HHS and NIH to reject the board’s recommendation not to fund fetal tissue research. He wrote at the time, “continued efforts to block funding for future fetal tissue research would put unnecessary and ill-advised limits on the scientific research we need now to combat COVID-19 and ensure all Americans have access to the best, most innovative treatment for the virus.”

Melanie Israel, a research associate at the DeVos Center for Religion and Civil Society at the Heritage Foundation, told the Register that “given what a partisan cultural warrior Becerra has been, I think it’s safe to say that they have every intention of rolling back pretty much every pro-life victory that the Trump administration accomplished.” 

She believed some of the pro-life policies he will roll back include “moral and religious exemptions for people like the Little Sisters of the Poor” and “the Obamacare abortion coverage transparency requirements.”

In a recent report detailing recommendations for Congress, Israel highlighted likely anti-life actions from HHS, including the rollback of “a regulation to ensure that insurers abide by both the letter and spirit of the Affordable Care Act by fulfilling the law’s requirement that insurers collect a separate payment for elective abortion coverage in qualified health plans (QHP) approved to be sold on the Obamacare exchanges.” 

Another likely move is “rescinding a Centers for Medicare and Medicaid Services (CMS) guidance that interpreted Medicaid’s ‘free choice of provider’ provision to restrict states from excluding family planning providers who also provide abortion from state-run Medicaid programs,” she added. 

Israel also expected HHS would roll back “the Conscience and Religious Freedom Division within the office for Civil Rights at the Department of Health and Human Services (HHS), which is tasked with ensuring that existing federal civil rights laws are robustly enforced.”

Severino told the Register “It would be an incredible conflict of interest for Becerra to move against the division that found him to have violated the law twice. He also twice sued to block some of the activities of the civil rights office which shows just how obsessed he is with getting around the laws protecting conscience and religious freedom in the name of abortion.” He said Becerra’s “repeated flouting of the law should force him to be recused from any decisions having to do with the future of the very unit that found him to have violated the law.” 


Abortion Groups’ Demands

Israel and McClusky believe that the “Blueprint for Sexual and Reproductive Health, Rights and Justice” released in 2019 by a coalition of nearly 80 abortion groups, including Planned Parenthood, is a road map of some of the things a Becerra HHS will attempt. 

The blueprint called for the elimination of HHS’s Conscience and Religious Freedom Division which, they claimed, “carries out discriminatory policies” and “emboldens discrimination and care refusal.” They also called to remove conscience protections for health-care providers who object to abortion as well as for new legislation that prevents religious health-care providers from refusing to participate in an abortion. “The administration and Congress must develop policies to ensure that hospitals and other health facilities do not refuse appropriate reproductive health-care services, information and referrals, regardless of their religious affiliation, including strong guidance, oversight and enforcement … to ensure that facilities comply,” the groups wrote.

“He [Becerra] is beholden to the abortion lobby and they have made their demands very, very clear in the Blueprint,” Israel said. “They explicitly call for people to be forced to violate their sincere beliefs and it’s really concerning that we see that kind of extreme policy being advocated for because the vast majority of Americans don’t think that doctors should be forced to perform and participate in procedures against their will.” McClusky expected the abortion groups are “going to get a lot of what they’ve asked for” in the blueprint.


Transgender Ideology Over Science

In addition to raising the alarm over the life issue, Severino voiced concern about the advancement of transgender ideology over science at HHS. This concern was heightened by the March 24 confirmation of Dr. Rachel Levine, a biological man who identifies as a transgender woman and who has advocated for “gender transition” medical treatments for minors, as assistant HHS secretary.

“There is a notion called the sex as a biological variable, SABV, which is used by NIH in all sorts of medical studies because SABV impacts things like the ability to test drugs for efficacy,” he said. “There’s all these statistics that depend on a person’s biological sex and I’m afraid that this science will be replaced by ideology that says that sex actually is what a person declares it to be based on their internal sense and that cannot be questioned and the science has to give way to the ideology not the other way around.” 

Severino cited a case from 2019 in which a transgender individual identifying as a man gave birth to a stillborn baby after suffering a delay in care because the hospital did not realize it was a pregnancy and not abdominal pain. 

“Those sorts of things can happen if the notion of sex is replaced with a subjective ideology-based notion,” he said. 

He also pointed out that Levine would not answer a question during confirmation hearings from Sen. Rand Paul, R-Ky., about whether it’s appropriate for minors to be receiving cross sex hormones and permanent sex reassignment surgery.

“Dr. Levine was being disingenuous by not answering the question that was answered when I asked it,” he said referring to a meeting he had with Levine during his time at HHS. “My question was ‘are these surgeries and cross sex hormones being done on adolescent children?’ And the answer was that Yes, it was. Dr. Levine acknowledged it, but would not acknowledge it with Sen. Paul. I was disappointed in that because I certainly know the truth of where Dr. Levine stands on this and that it was sad that it didn’t come out in the hearing, instead we got evasive answers.” 


Pro-Life Call to Action

The pro-life movement is urging vigilance of a Becerra-run HHS. McClusky pointed out that HHS “has the largest budget in the United States government even bigger than the military, now Becerra controls that and his focus isn’t on health care, it’s never been on health care it’s all about the courts and suing.” 

As for the pro-life movement’s response, he said “you’ll see us working more closely with people in the states including attorney generals in the states.” 

Added McClusky, “While the last election was bad for pro-lifers when it came to the presidency and the Senate, in every other field I believe that pro-lifers came out ahead, in state legislatures, in governors’ races, in state attorney general’s races, and in the House of Representatives. I would expect that, at least for the next year and a half, our concentration will be in trying to get the states to take action when they do something and then hopefully if we get one or two chambers back then start doing the oversight so that we know what to reverse when a new president comes in.”

Israel noted that while the “back and forth of administrative policy, the constant litigation from one side and the other” is important, “it also demonstrates just how important the everyday work of the pro-life movement is, what’s being done in pregnancy resource centers and people just at the community level working to support moms and babies. That happens no matter who is in charge. No matter what the administrative policies are.” 

“I hope that people aren’t too discouraged,” she said. “It’s of course frustrating and disappointing to know that some of those victories are going to be rolled back but a lot of the great work being done in the pro-life movement is going to keep chugging along.”