Sen. Lankford Calls on the Senate to Pass His Conscience Protection Act

WASHINGTON, Jan. 21 -- Sen. James Lankford, R-Oklahoma, issued the following news release:

Senator James Lankford (R-OK) today took to the Senate floor to protect the conscience rights of all Americans by asking the Senate for unanimous consent to pass his Conscience Protection Act, which he introduced to protect healthcare providers, including health insurance plans from government discrimination if they decline to participate in abortions. Unfortunately, Democrats blocked Lankford's bill to ensure all Americans have their conscience rights protected.

Lankford remains a staunch advocate for conscience protections, including for healthcare workers and insurance providers, who do not want to participate in abortions. He introduced an amendment that saved the long-standing Hyde and Weldon Amendments, which prohibit the use of taxpayer dollars to fund abortions and abortion-related discrimination against health care workers, including insurers.

Lankford called out the Biden Administration after a memo surfaced from HHS rescinding the authority of its Office for Civil Rights to investigate claims of violations of an individual's rights under the Religious Freedom Restoration Act (RFRA). Lankford was joined by Senator Tim Scott (R-SC) and Representative Ralph Norman (R-SC) in sending a bicameral letter to Becerra, condemning HHS's recent reversal of protections for faith-based adoption and foster care agencies.

Transcript

I guess I'm one of those extreme republicans that believe that a child that sucks their thumb, wiggles their toes and fingers, feels pain, has a beating heart, has a functioning nervous system, has DNA that's different than the mom or the dad is a baby. I didn't think that it was an extreme position to see a child as self-evident. That's a child. I understand Americans are divided on whether children in the womb are convenient or inconvenient and if they're inconvenient they can be thrown away as medical waste, but if they're convenient they're kept. I just think every child is precious, and I think every child should be honored and protected. So I guess that makes me extreme.

The bill that I bring today is a bill that just looks at the millions and millions and millions of Americans who believe like I do. Many of them work in hospitals, and they joined the health care profession and got a medical degree because they wanted to save life. They want to be a part of protecting individuals at their most critical times. But they also have this real belief, that's a science-based belief, by the way, that a child in the womb is just like a child outside the womb and the only difference is time. Forty weeks ago you were 40 weeks younger. That child in the womb at conception and the child outside the womb is just 40 weeks older, just like you're 40 weeks older than what you were 40 weeks ago. It's still a child.

For the millions of Americans that believe like that, we've had conscience protection laws on the books for a long time. In fact, there are 25 conscience protection laws on the books in America right now. Many of these have not been controversial. In fact, if we go through the Church Amendments, when they were done, they protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortions or sterilizations against their religious beliefs or moral convictions. When that passed almost 50 years ago now, it passed 92-1 in this body. It just wasn't that controversial. We understood that people disagreed on the issue of abortion. And why would you ever compel someone to be able to perform an abortion when their conscience objects to that?

In 2004, Congress created the Weldon Amendment. It's on all of our annual appropriations bills. The Weldon Amendment bars the federal government and state and local government recipients of federal funds from discriminating against health care entities that refuse to provide, pay for, or provide coverage or refer for abortions. It's not been that controversial. In fact, it was in the Consolidated Appropriations Act last year, which passed 92-6. This has not been that controversial to be able to honor the rights of individuals.

Now, there are some things that have changed. Some of these 25 laws have not been enforced. In fact, these 25 conscience protections that are on our books right now are dependent on the Executive Branch to actually enforce those laws. If I go back during the Trump Administration, they confronted California because California mandated that insurance providers had to provide abortion coverage. Well, that's not consistent with our law. And so the Administration pushed them and said, 'No, you can't compel a religious institution that has a moral objection to abortion in your state. You can't make them buy abortion coverage and actually pay into that system,' though California is. So the Trump Administration said to them, 'No, you've got to allow those folks to have the option.' That's the federal law.' And that was in the process of being enforced until this Administration took the leadership and Xavier Becerra, who was the attorney general of California, then moved to HHS and immediately dropped the suit against California, his old state. Curious.

So the religious entities don't have any recourse in California because the Executive Branch won't enforce it. Let me give you another example. There's an employer, the University of Vermont Medical Center, they were pressed with a lawsuit against them for knowingly, willfully, and repeatedly violating the Church Amendments. They had nurses that were there that said, 'I have a conscience issue, I don't want to participate in abortion,' and the University of Vermont Medical Center would compel them to perform abortions or they would lose their jobs. It's in direct violation of the federal law and the conscience protections.

So there was a lawsuit against them to be able to have them actually carry out federal law.

The Biden Administration came in, Xavier Becerra immediately dropped that lawsuit. There was no settlement. There was no statement about it. Though it's federal law that you can't violate someone's conscience protections, they said, 'We're not going to enforce that federal law' though it was in the process of being enforced. So the question is for religious entities in California, or for a nurse in Vermont, where do they go? If the entity charged under federal law--25 federal laws to be exact, to actually allow people to have conscience protections, if that entity says we won't do it, what happens?

This bill is very straightforward. It just gives the ability for that individual to be able to press a suit for their own rights. If the federal government will not enforce the law, this allows that individual to step up and say, 'Then I will then file charges that you're in violation for federal law for this' to protect their rights as a citizen. Quite frankly, it's not any different than any other citizen would do anywhere else, that if they had a civil violation against them that was clearly in violation of their rights, they would be able to go to court and be able to say my rights have been violated, here is the statute and they'd have their day in court. That is not allowed currently in federal law.

It has to be the Executive Branch and as we have learned it is under the whims of the Executive Branch whether they will carry it out or not. This is not controversial. The most recent survey done by the Knights of Columbus that came out this week asked a question about conscience protections. It was a very straightforward question and the answer came back 75 percent of the individuals surveyed said that doctors and nurses should not be forced to perform abortions if they have a religious objection.

Now we're very divided on the issue of abortion, but our nation is really not that divided on the issue of conscience protections. This is: can an employer compel someone to do something that violates their religious or moral beliefs and if they don't they lose their job? That's the only question in this. And that's why I bring it to this body today. That's my simple request. Now, this body knows, and Senator Murray who is on the floor with me today knows my beliefs about the value of every single child.

I look forward to the day that we're post-Roe as a nation and the Supreme Court of the United States is not compelling every state to have abortions carried out that are elective abortions in their state. A post-Roe nation is not a nation that has no abortion, it's a nation where state to state each state makes those decisions. I brought a bill for chemical abortions, to 20-week pain-capable bills, and those dealing with Down Syndrome, dealing with Planned Parenthood and all sorts of different issues. This issue is very specific though. It's just about conscientious objectors, should they be compelled to violate their beliefs by their employer.

Click here (https://youtu.be/KahhJhtrqsU) to watch Lankford's remarks on YouTube.

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December 16, 2021

To: The Honorable Xavier Becerra, Secretary of Health and Human Services, U.S. Department of Health and Human Services, 200 Independence Ave, SW, Washington, DC 20201

Secretary Becerra:

Faith-based child welfare providers perform vital services for hundreds of thousands of foster children nationwide and are often the best at finding forever homes for children in need. Alongside secular child welfare providers, faith-based organizations provide support, resources, and care to the nearly half a million kids who have found themselves in foster care through no fault of their own.

The freedom to work with faith-based agencies is vital to many foster families. Many studies have shown that faith is often a key motivator in a family's decision to foster children. Families recruited through church or religious organizations on average foster more than two and a half years longer than other foster parents. One study found that 82 percent of families cited faith or church support as a factor that facilitated successful fostering. Another study revealed that 36 percent of families recruited by one religious organization would not have become foster or adoptive parents were it not for that organization's efforts.

Furthermore, states that have pushed faith-based providers out of the picture have seen a measured decrease in their ability to respond to the foster care crisis. For example, in the eight years after Illinois passed a law ending its partnerships with faith-based agencies, the state lost over five thousand foster homes. Massachusetts lost 2,000 foster families between 2014 and 2019.

These are loving homes that we cannot afford to lose in the middle of a national foster care crisis. According to the Administration for Children & Families' annual Adoption and Foster Care Analysis and Reporting System (AFCARS) report, 407,493 children are in foster care, 117,470 of whom are waiting to be adopted. With these staggering numbers in mind, our primary goal should be safe, loving, and permanent placements for all children.

We find it disturbing that one day before it released its 2021 AFCARS report, the Department of Health and Human Services (HHS)--with your express approval-- announced the rescission of waivers that were previously granted to faith-based adoption and foster care agencies in Michigan, Texas, and South Carolina. As you know, rescinding the waivers puts providers in these states in the untenable position of choosing between serving children under the Title IV-E foster care program or operating in accordance with the tenets of their faith - the same faith that drives them to serve children in the first place. HHS should be welcoming child welfare providers, not excluding them. Children are too important to be pawns in political games.

As you know, the waivers acknowledged that prospective foster parents of all faiths, or no faith at all, have options for agencies that will work with their particular circumstances. As a result, your precipitous actions create no winners, only losers in the form of children, parents, religious freedom, and the rule of law.

On April 10, 2018, a dozen United States Senators sent a letter to then-Secretary Alex Azar concerning the Obama administration's grants rule, 45 C.F.R. Sec. 75.300, which wrongfully targeted a number of faith-based child welfare providers, forcing them to forgo their sincerely held religious beliefs to qualify for grants. Miracle Hill Ministries, South Carolina's oldest and largest provider of foster families for foster children, for example, would have lost access to Title IV-E funding under the Obama rule. The Trump administration rightly recognized that the Religious Freedom Restoration Act (RFRA) entitled certain faith-based agencies protection from exclusion from the program because of their faith, including through application of 45 C.F.R. Sec. 75.102(b).

Earlier this year, a unanimous Supreme Court in Fulton v. City of Philadelphia validated the principle that religious adoption agencies have a right to be free from discriminatory exclusion from adoption and foster care programs because of their beliefs. The Supreme Court found that "the refusal of Philadelphia to contract with Catholic Social Services for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment." However, HHS and the Biden administration appear to be ignoring the Court's clear direction that religious foster care agencies cannot be shut down because of their religious beliefs.

Philadelphia's attempt to eradicate faith-based foster care was not only unconstitutional, but also detrimental to the goal of finding enough loving homes to meet the city's great need. The Court noted that "[i]f anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents."

What was clear to the Supreme Court--and what is borne out in the empirical data--does not appear to be clear to you. In the very moment when your agency should be taking action to expand opportunities for children and families within the foster care system, you are instead taking actions that will reduce options for the 407,493 children in foster care.

Worse still, you have personally stripped the Office for Civil Rights (OCR) of existing authority to receive, handle, investigate, and oversee resolution of complaints under RFRA and the religion clauses of the First Amendment. 86 F.R. 67067 (Nov. 24, 2021). You were questioned specifically and extensively in Congressional hearings on whether you were planning to limit or shut down conscience and religious freedom enforcement at the Office for Civil Rights and in response you said "we, under the Office of Civil Rights will be protecting those rights" and "we will continue to provide protections for the civil constitutional rights of all Americans including those that involve religion and so nothing there changes." With these and other anti-religious freedom actions you have taken, you have betrayed your promise.

The November 18 announcements made by HHS's Administration for Children and Families (ACF) and OCR regarding the rescission of waivers, and your Federal Register notice of November 24, raise a number of questions. We request your full and complete responses to the requests and questions below no later than January 15, 2022. Please provide a response below each question instead of a narrative response.

1. Identify all outside persons or groups that communicated to HHS advocating for revocation of the waivers.

2. Identify all outside persons or groups that communicated to HHS advocating for the revocation of the RFRA and First Amendment delegations of authority to OCR.

3. Identify who originated the idea to revoke the waivers.

4. Identify who originated the idea to revoke the delegations of authority.

5. Produce all documents, memos, and communications discussing or seeking approval of the revocations of the waivers.

6. Produce all documents, memos, and communications discussing or seeking approval of the revocations of the delegations of authority.

7. Produce all documents approving the revocation of the waivers.

8. Produce all documents approving the revocation of the delegations of authority.

9. Produce all communications sent to outside individuals, groups, entities, or parties, including non-profits, advocacy organizations, states and state agencies, concerning the revocations of the waivers before and after they were approved.

10. Produce all communications sent to outside individuals, groups, entities, or parties, including non-profits, advocacy organizations, states and state agencies, concerning the revocations of the delegations of authority before and after they were approved.

11. Were any career professionals in the Conscience and Religious Freedom Division consulted (not merely informed) before the revocation of the waivers? If not, explain in detail why not. If so, did any oppose the revocation of the waivers?

12. Were any career professionals in the Conscience and Religious Freedom Division consulted (not merely informed) before the revocation of the delegations of authority? If not, explain in detail why not. If so, did any oppose the revocation of the delegations of authority?

13. Please provide us with a legal analysis for how HHS reached the decision to rescind each waiver. Include all internal communications and documentation used to consider the necessity of the waivers and all analysis that was done on the potential impact of the decision before the revocations were decided.

14. Please provide us with a legal analysis for how HHS reached the decision to rescind each delegation of authority. Include any internal communication and documentation used to consider the necessity of the delegations and all analysis that was done on the potential impact of the decision before the revocations were decided.

15. In ACF's letter to South Carolina Governor Henry McMaster, ACF mentions that "accommodations could have been explored to address the specific religious burden identified by Miracle Hill." Why was there no outreach to South Carolina or Miracle Hill to explore the aforementioned accommodations before revoking these waivers? Will Texas and Michigan and faith-based providers there be afforded consideration of potential accommodations?

16. Did you consult with the Governors or Attorneys General of South Carolina, Texas, or Michigan or any representatives of their offices prior to revoking the waivers?

17. Your agency appeared to justify the decision to rescind the waivers by stating that they had applied to "other similarly situated entities," instead of applying only to the specific individual entities (Miracle Hill, St. Vincent and Archdiocese of Galveston-Houston). Why didn't HHS leave in place the waivers for those individual entities if the justification was that the waiver encompassed similarly situated entities?

18. Will commit to maintaining the notice of non-enforcement for the 2016 grants rule and disavow its enforcement moving forward, or will HHS continue to reserve its right to revoke the notice of non-enforcement at any time?

19. Yes or no, will HHS exclude from the Title-IV E program religious adoption and foster care providers that cannot assist in the placement of children in same-sex households without violating their religious exercise when those households have alternative providers available to assist them in the state?

20. Identify every civil rights statute applicable to your agency that does not have a delegation of authority assigned to any particular component of HHS for handling of complaints.

Despite being in the middle of a pandemic, your singular focus on reversing structural and individual religious freedom protections--protections which have worked well--demonstrate that you are placing ideology over the interests of the law, children, and faith-based partners who only want to continue serving their communities in peace. It is our hope that you will promptly correct these unprecedented actions and abide by your promises made to Congress.

View co-signers at https://www.lankford.senate.gov/imo/media/doc/Letter%20to%20Xavier%20Beccera%20re%20OCR%20and%20Faith-Based%20Providers%2012.16.211.pdf