Public Comments: Removing Barriers for Religious and Faith-Based Organizations to Participate in HHS Programs and Receive Public Funding

Re: HHS-9928-RFI Regarding Faith-Based Organizations


The request for information (RFI) entitled “Removing Barriers for Religious and Faith-Based Organizations to Participate in HHS Programs and Receive Public Funding” indicates that the Department of Health and Human Services (HHS) is considering expanding religious exemptions in HHS programs and activities. Rather than discussing the needs of the patients and individuals served by HHS’ programs, the RFI is exclusively focused on soliciting information regarding presumed regulatory and programmatic barriers to the inclusion of more faith-based organizations in HHS programs. Faith-based organizations do not face barriers to participation in HHS programs, and allowing additional accommodations will make it harder for women and LGBTQ people to access the services they need.

Faith-based organizations do not face obstacles to participation in HHS programs.

The RFI asks respondents to identify barriers to participation in HHS programs for faith-based organizations, but these organizations do not face obstacles to participation in HHS funded programs and activities. We respect the historical role that faith-based organizations have played, and continue to play, in providing an array of important services to people and communities in need of health care, education, social services, and other charitable services in the United States. Indeed, a number of safety-net health care providers across the nation work closely with faith-based organizations to serve the diverse and wide-ranging health, social, and economic needs of the beneficiaries they serve, and some providers involved in HHS-funded programs are themselves faith-based organizations.

The long and extensive partnership between faith-based organizations and HHS, as noted by the RFI, shows they are not facing barriers to participating. Moreover, there are already several religious exemptions in federal law that accommodate religious organizations, and a number of federal laws, including the so-called Church Amendments, Coats Amendment, and Weldon Amendment, grant religious exemptions from treating a woman seeking an abortion. Many of these religious exemptions and accommodations already threaten the health and well-being of women across the country.

What some faith-based providers have identified as barriers are nondiscrimination principles and programs conditions that apply equally to all HHS contractors and grantees—religious or secular. For example, some religiously affiliated health care organizations have registered objections to fully complying with the Affordable Care Act’s broad-based prohibition on sex discrimination in health programs or activities. In addition, the United States Conference of Catholic Bishops (USCCB) has asked to contract with the federal government but not abide by the employment protections other federal contractors must follow. Specifically, the USCCB demanded broad exceptions in order to discriminate against employees because of their gender identity or sexual orientation. But nondiscrimination laws and program conditions are not barriers or discrimination based on religion.  They are fundamental legal requirements from which there can be no accommodation.  

Faith-based organizations are not excluded from eligibility for HHS funding.

The RFI asks whether and how faith-based groups are excluded from HHS funding, but we do not believe that they are. Rather, faith-based organizations already benefit from unique partnership opportunities with the federal government. As mentioned in the RFI, Presidents George W. Bush and Barack Obama issued executive orders that direct federal agencies to ensure “equal protection under the laws for faith-based and community organizations” and to “strengthen the capacity of faith-based organizations to deliver services effectively to those in need.” These and other executive orders and regulations already promote federal partnerships with religiously affiliated organizations, and “ensure[ ] faith-based community groups and organizations are as equally eligible as secular groups to compete for federal funding to provide social services to the public.”

The existing executive orders considered the questions raised by the RFI. Thus, we urge HHS to not create any new “accommodation” in order to ensure any potential grantee or contractor will adhere to any and all program requirements. Moreover, HHS must ensure that any HHS-funded or contracted organization provides programs or services that comport with unbiased, evidence-based standards of care. Religious beliefs should never determine a HHS program beneficiary’s access to services, and nobody should ever fear that an HHS grantee or contractor will turn them away due to religious or moral beliefs.  

Accommodations that cause third party harm are unlawful.

The RFI asks respondents to identify changes to HHS regulations, guidance, or other documents to “ensure faith-based organizations receive accommodation.” But, the RFI fails to ask respondents to identify the impact accommodations would have on program beneficiaries. Before creating any accommodations, HHS must consider the impact on third parties of any accommodation and may not grant an accommodation if it harms third parties.

Any accommodation that results in third party harm is unlawful. The First Amendment forbids the government from creating religious accommodations to generally applicable laws when the accommodation would have a detrimental effect on third parties. In Hobby Lobby the Supreme Court made clear this same principle applies when developing an accommodation pursuant to the Religious Freedom Restoration Act (RFRA), finding that the impact on third parties must be “precisely zero.”

Continued partnerships with faith-based organizations must ensure women and LGBTQ people can access nondiscriminatory care.

The RFI asks about the proper role for faith-based organizations to participate in HHS programs. Faith-based organizations do have a long and important history of partnering with HHS to deliver vital health and social service programs. Yet some faith-based organizations also have a history of using HHS funds to discriminate and withhold needed services. LGBTQ individuals have been denied care or been subject to disparaging provider behavior because of their sexual orientation or gender identity, and women have been refused services at religiously affiliated hospitals when seeking contraceptive services, sterilization or abortion care.

Women, LGBTQ individuals, and people of color—those most in need of care due to health and health care disparities—are most affected by religious refusals. Refusals undermine the ability for individuals from these groups to access comprehensive and unbiased health care, including sexual and reproductive health information and services. Efforts by faith-based organizations or providers to limit the information and access to services that patients are entitled to receive, even when the organization may not provide those services itself, are incompatible with true consumer choice and individual decision making.

Thus, we strongly urge HHS to reinforce existing policies and practices that rightly prioritize the needs of the individuals and communities receiving HHS programs and services, including reproductive health care services. The proper role of faith-based organizations that administer health care services, social services, research, or other HHS activities is to engage in medically accurate, evidence-based, non-discriminatory, and unbiased activities. Any new or continued government collaboration with faith-based organizations should not include the sanctioning of discriminatory practices that fail to serve certain populations or deny particular services, including reproductive health care such as contraception, maternity care, sterilization, and abortion.

HHS should turn its focus to promoting public health and ensuring program beneficiaries have access to the services they need.

The focus of HHS’ RFI regarding faith-based organizations is both flawed and misplaced. The RFI misses the mark in two important ways. First, the RFI ignores the reality that many faith-based organizations have objections to essential health services that are the foundation of longstanding, critical HHS programs. In the arena of health care, and particularly family planning and sexual health, HHS-funded programs cannot achieve their fundamental objectives if the program contractors or grantees refuse to provide essential services, such as contraception, or discriminate against patient populations, including women and LGBTQ people.

Second, the RFI fails to consider the needs of program beneficiaries and the entities currently participating in already overburdened and underfunded HHS programs. HHS should be working to eliminate existing discrimination in HHS programs and activities, including refusals to provide reproductive health care or to serve certain populations. In addition, HHS must examine how to improve patient access to the essential health care services funded through HHS programs, which would include examining the barriers current health care providers face in meeting the needs of their patients through these programs.

We urge HHS to prioritize the needs of the beneficiaries of HHS programs and the health care providers that already serve them at the forefront of any consideration of achieving HHS’ “mission of improving Americans' health and well-being.”