Hawley demands answers on HHS religious liberty rules, blasts 'equity' focus

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Sen. Josh Hawley, R-Mo., is demanding answers after the Health and Human Services (HHS) Department rolled back Trump-era provisions on religious liberty, in part out of concern that they produced less equitable outcomes.

“Let’s be clear: the only reason to remove RFRA [Religious Freedom Restoration Act] compliance enforcement from the Office of Civil Rights is if your administration no longer believes that religious liberty is a civil right,” Hawley said in Tuesday’s letter to HHS Secretary Xavier Becerra.

Sen. Josh Hawley, R-Mo., speaks during a Senate Judiciary Committee hearing in Washington, D.C., U.S., on Tuesday, March 2, 2021.
(Graeme Jennings/Washington Examiner/Bloomberg)

“Instead of affirmatively taking steps to ensure the Department is fully complying with its constitutional and statutory obligations, the underlying memo explains that the Office of Civil Rights [OCR] will no longer ‘proactively’ enforce RFRA. Instead, the burden will be on individual Americans of faith to hold the Department accountable for its conduct.”

Fox News previously reported on a leaked internal memo which former HHS officials derided as gutting needed protections. The memo’s provisions, which were formally entered into the Federal Register last week, revoked delegations of authority for OCR to protect against RFRA and First Amendment violations.

In its memo, HHS described the moves as a way to redistribute authority among various agencies and “ensure that it is not misused by any one agency to enact a broad, proactive agenda.”

Secretary of Health and Human Services Xavier Becerra answers questions at a Senate Health, Education, Labor, and Pensions Committee hearing to discuss reopening schools during COVID-19 at Capitol Hill on Sept. 30, 2021 in Washington, D.C. 
(Greg Nash- Pool/Getty Images)

As Hawley noted, the memo has a note on equity that argues “the prior Administration took an expansive view of the use of RFRA that resulted in negative impacts for underserved communities.”

The draft specifically calls out “broad-based exemptions from nondiscrimination requirements to child welfare agencies challenges the ability of children and youth to obtain safe and loving foster and adoptive homes. It also clearly sent the signal to LGBTQ+ communities that the Department did not recognize their civil rights, including the right to marry.”

In Tuesday’s letter, Hawley said that “‘equity’ has nothing to do with RFRA — and indeed, mentioning it in this context betrays a fundamental misunderstanding of the logic of the law.”

He added that “to invoke the idea of ‘equity’ here, in the context of flattening down legal protections for religious liberty, is baldly contrary to RFRA’s intent.”

The exterior of the U.S. Department of Health and Human Services is seen in August 2006 in Washington, D.C.   
(Alex Wong/Getty Images)

In addition to redelegating authority, HHS also revoked certain waivers for faith-based organizations that, among other things, refuse to serve same-sex couples.

HHS did not immediately respond to Fox News’ request for comment but previously maintained that it intended to continue protecting religious liberty interests.

“Our action ensures we are best prepared to protect every American’s right to be free of discrimination,” HHS Secretary Xavier Becerra said in a press release about revoking the faith-based waivers. 

“With the large number of discrimination claims before us, we owe it to all who come forward to act, whether to review, investigate or take appropriate measures to protect their rights. At HHS, we treat any violation of civil rights or religious freedoms seriously.”

Hawley’s letter adds to already-mounting congressional scrutiny of HHS. Becerra’s track record, for example, has prompted 100 GOP lawmakers to reintroduce conscience protection legislation.

The Missouri senator requested information on why the memo proposed making changes without a “formal rollout” as well as which third party resources and groups consulted on the development of the decision to rescind RFRA. Earlier in his letter, Hawley blasted the department’s justification as “merely a tired, ACLU[American Civil Liberties Union]-inspired talking point.”

The ACLU did not immediately respond to Fox News’ request for comment.

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