Nothing requires a president to nominate for secretary of Health and Human Services a person with a career in medicine, though it might naturally be expected that the nation’s “principal agency for protecting the health of all Americans and providing essential human services” would be best led by someone with administrative experience in the medical field, or better yet, a physician. The current secretary isn’t a physician, though his predecessor was, and presidents past, both Republicans and Democrats, have elevated non-physicians to the post.
In any case, a given choice for the post should be interpreted as a reflection of presidential priorities. In choosing California Attorney General Xavier Becerra to lead the agency, President-elect Joe Biden illustrates that he is not only dead serious about repealing the Trump administration’s contraception exemption, which he could do without Becerra, but that he plans to use the agency to mount an aggressive challenge to religious liberty interests.
Being more sensitive to conscience claims, the Trump administration made it a priority to issue rules expanding religious and moral exemptions to the preventive coverage requirements, which would include things such as sterilization and contraceptives. Becerra, both in bringing suit and contributing to amicus briefs in other suits, made himself a party to numerous efforts to strike down the Trump administration’s broadened exemptions for those who have sincere objections to the Affordable Care Act’s preventive coverage requirements.
The administration issued a rule change in 2017, and Becerra quickly filed suit against the administration, preferring that the government not grant any more deference to those who, like the Little Sisters of the Poor, cannot in good conscience contribute to the propagation of sterilization and contraception use. “These anti-women’s health regulations prove once again that the Trump Administration is willing to trample on people’s rights,” Becerra said in a statement at the time. “Trample on people’s rights” — that’s rich.
The Little Sisters subsequently filed to intervene, became a party to the suit, and, under the aegis of Becerra, the state of California spent the next several years in a legal head-to-head with the Little Sisters of the Poor.
This year, in an effort that Becerra’s office described as being “co-led” by him and Massachusetts Attorney General Maura Healey, 21 attorneys general signed on to an amicus brief filed in support of Pennsylvania’s and New Jersey’s efforts to have the administration’s exemptions thrown out.
“The legislative history further confirms that Congress did not provide the agencies with authority to promulgate the moral and religious exemption rules; Congress itself rejected a ‘conscience amendment,’ the brief says. Congress did not pass a conscience amendment in the enacted ACA or thereafter to protect religious objections, the argument goes, so the rules supplant congressional intent.
In July, the Supreme Court ruled 7-2 in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania that the administration has the authority to issue such broad exemptions. It would also mean that a subsequent administration has the authority to remove them, and Biden plans to do that.
“If I am elected, I will restore the Obama-Biden policy that existed before the Hobby Lobby ruling: providing an exemption for houses of worship and an accommodation for nonprofit organizations with religious missions,” Biden said in response to the Little Sisters decision. The narrowness of the exemption regime under Obama-Biden kicked off similar litigation in the first place, and so the sisters will likely be back in court in short order, forced to participate in this Sisyphean exercise once again.
Considering all this, there is little reason to come away thinking that Biden’s primary concern was elevating someone able to lead the health agency competently, whose attention and resources the coronavirus will command for the foreseeable future. Becerra’s experience is in litigating against religious liberty interests, the interests of a group of Catholic nuns, no less. Try squaring that with the president-elect’s credo.
