ADMINISTRATION FOR STRATEGIC PREPAREDNESS AND RESPONSE (ASPR)

ASPR vs. FEMA. When the President declares a national emergency (per the Stafford Act) related to a public health emergency declared by the HHS Secretary, FEMA is activated and controls instead of HHS/ASPR. While this arrangement has some benefits because of FEMA’s unique logistical capabilities, the arrange- ment should be reviewed—especially considering the COVID-19 pandemic—for improvements in efficiency according to expertise and available resources, reduced confusion for ASPR and among HHS agencies, and avoidance of duplicated efforts among agencies and personnel.

in the Office of Science and Medicine to drive investigative review of literature for a variety of issues including the effect of abortion on prematurity and breast cancer; lack of evidence for so-called gender-affirming care; and physical and emotional damage following cross-sex treatments, especially on children. The OASH should withdraw all recommendations of and support for cross-sex medical interventions and “gender-affirming care.”

Title X. The Title X family planning program should be reframed with a focus on better education around fertility awareness and holistic family planning and a Deputy Assistant Secretary for Population Affairs that understands the program and is able to work within its legislative framework (ideally, an MD). In addition, the Office of Population Affairs should eliminate religious discrimination in grant selections and guarantee the right of conscience and religious freedom of health care workers and participants in the Title X program.

In 2021, HHS reversed a Trump Administration regulation that required grant- ees to maintain strict physical and financial separation between Title X activity and abortion-related activity.76 Under the Biden Administration’s regulation,77 Title X activity can be conducted alongside abortion activity without strict physical and financial separation. The regulation also requires grantees to refer for abortions despite sincere moral or religious objections. This effectively bans otherwise qual- ified pro-life grantees from participating in the program.

HHS should rescind the Biden Administration’s regulation and reinstate the Trump Administration regulation for the program. It should also do this quickly (the Biden Administration completed its regulatory process and issued a final rule in less than nine months) and expand the potential grantee population beyond abortion providers like Planned Parenthood.

Congress should complement these efforts by passing legislation such as the Title X Abortion Provider Prohibition Act,78 which would prohibit family planning grants from going to entities that perform abortions or provide funding to other entities that perform abortions. This would help to protect the integrity of the Title X program even under an abortion-friendly Administration. Strategic National Stockpile. The President should invoke the Defense Pro- duction Act,79 which is a form of temporary takeover of private enterprises, only in the gravest circumstances. The Strategic National Stockpile (SNS) should be reformed to consider the potential supply chain disruptions of pandemics or global conflicts. Also, during the COVID pandemic, many states received ventilators from the SNS and hoarded them in places where a rush of COVID patients needing ven- tilators never materialized. The SNS should clarify its mission as supplier of last resort to the federal government, state governments, or first responders and key medical staff and should not portray itself as serving the public as a whole.

OFFICE OF GENERAL COUNSEL (OGC)

The Office of General Counsel is essential to ensuring that HHS is operating within the bounds of its numerous governing statutes. However, legal caution can outweigh practical necessity and often slows processes and decisions when time is of the essence. Such problems were evident both before and during the COVID-19 pandemic. Internal processes should be reformed to streamline necessary legal determinations during crises, and general processes should be reviewed for effi- ciency. OGC should also:

Rescind its PREP Act liability memo. OGC issued a PREP Act liability memo that suspended application of civil rights and other laws in the context of the administration of covered countermeasures during the pandemic. It should be rescinded as contrary to law. Rescind efforts to curtail OCR authority over conscience and religious freedom. All OGC memos and Federal Register notices of organization or delegations of authority moving any OCR conscience and religious freedom enforcement to OGC, including RFRA, should be rescinded, and independent authority over these matters should be restored to OCR.

Encourage DOJ to repeal OLC memos allowing abortion funding despite Hyde and memos allowing federal enclave immunity to perform abortions despite the Assimilative Crimes Act.80 Rescind legal analysis that authorized HHS to impose a moratorium on rental evictions during COVID. Rescind the OGC legal analysis saying that the injunction in Bowen v. American Hospital Association81 prevents any proposed HHS regulations or enforcement actions concerning the denial of care — 492 —Department of Health and Human Services to newborn infants with disabilities by covered health care entities without or against parental consent.

Rescind the legal analysis supporting the Biden Administration’s decision to dismiss the University of Vermont Medical Center case dealing with the forced participation of a nurse in abortion in violation of law. Rescind the legal analysis restoring $200 million in Medicaid funds to California after having been found to be in violation of the Weldon Amendment by OCR.

OFFICE OF GLOBAL AFFAIRS (OGA)

The Director of the Office of Global Affairs should have the title of Assistant Secretary so that he or she can adequately represent HHS and the Secretary and serve as the lead on global health diplomacy for the government. The designation “Director” is not understood to indicate the leadership role that this position holds in the international arena. In addition:

OGA should have a clear and consistent voice for the Administration’s pro-life and pro-family priorities in all international engagements. OGA should hold oversight authority for implementation of the Mexico City policy throughout all divisions. Every effort should be made to locate all OGA staff in the same building for better oversight and communication. Health attachés in various global locations should be trained in the Administration’s policies with clear expectations communicated and with accountability, including replacement, when their conduct and advocacy are contrary to Administration policies and programmatic priorities.

OFFICE FOR CIVIL RIGHTS (OCR)

Conscience Enforcement. Existing statutes that protect rights of conscience (such as the Church, Coats–Snowe, and Weldon amendments) do not explicitly

All divisions that work on international health efforts should be responsive to requests and direction from the Assistant Secretary with coordination for all health diplomacy emanating from OGA. provide a private right of action that would allow victims to seek legal redress in court. At the same time, when it continues to fund governmental and private enti- ties that violate these laws, HHS is spending taxpayer funds unlawfully. Under liberal Administrations, OCR has amassed a poor record of devoting resources to conscience and religious freedom enforcement and is often complicit in approving or looking the other way at the Administration’s own attacks on religious liberty. Congress should pass the Conscience Protection Act so that victims can pursue redress through courts without having to depend exclusively on OCR.

In addition:

OCR should return to Trump Administration policies that initiated robust enforcement of these conscience laws. It should restore and fully fund the Office of the Deputy Director for the Conscience and Religious Freedom Division (CRFD) and ensure that it has the necessary delegations from the Secretary to enforce these laws. The Secretary should give adequate delegations to OCR to pursue enforcement of conscience laws, including RFRA, and require all HHS components that provide funding or grants to cooperate with OCR CRFD investigations.

The Secretary, the Deputy Secretary, and principals in other HHS divisions should endorse the remedial measures recommended by OCR CRFD and limit territorial objections and slow-down attempts by other divisional officials including OGC. HHS should withdraw funding from any violating entities that refuse to correct their behavior, and OCR CRFD should work with ASFR to ensure that all grant announcements and instruments inform grantees and applicants of their obligations to comply with federal health care conscience laws specifically as a condition of obtaining or maintaining their funding.

A draft OCR RFRA and religious freedom rule from the Trump Administration should be issued and finalized. These regulations would provide a clear process for OCR’s enforcement in coordination with other HHS divisions and existing HHS grants regulations.

HHS should reestablish waivers for state and child welfare agencies for religious exemptions, especially for faith-based adoption and foster care agencies. It should also rescind subjective case-by-case eval- uations for religious and faith-based organizations that request religious exemptions. These case-by-case determinations are currently coordinated with ACF and OCR. The recommended waivers should be granted to all states and agencies that request them, and OCR memos finding that RFRA would be violated if the waivers are not granted should be restored.

HHS should restore OCR authority to review requests for and render opinions on the application of RFRA to requests for religious accommodation of people, families, and doctors who cannot in good conscience take or administer vaccines, including those made or tested with aborted fetal cell lines.

HHS should restore Section 1557, Section 504, and other OCR regulations and fix guidance documents. In 2020, the Trump Administration’s OCR published regulations under Section 1557 of the Affordable Care Act that restored the agency’s enforcement of that law to the limits of its statutory text, deferred to the ACA’s widespread use of a binary biological conception of sex discrimination, and specified that the regulation must comply with the religious exemption and abortion neutrality clauses in Title IX from which it is derived as well as the Religious Freedom Restoration Act and other laws. Courts blocked core provisions of that rule from going into effect.

OCR should return its enforcement of sex discrimination to the statutory framework of Section 1557 and Title IX.

Specifically, it should:

1. Remove all guidance issued under the Biden Administration concerning sexual orientation and gender identity under Section 1557, particularly the May 2021 announcement of enforcement82 and March 2022 statement threatening states that protect minors from genital mutilation.83
2. Issue a general statement of policy specifying that it will not enforce any prohibition on sexual orientation and gender identity discrimination in the Section 1557 regulation and that it will prioritize compliance with the First Amendment, RFRA, and federal conscience laws in any case implicating those claims. DOJ should commit to defending these actions aggressively against inevitable court challenges, including under cases such as Heckler v. Chaney.84

In 2022, the Biden Administration proposed to reinstate a rule contradicting the scope of the statute and imposing nondiscrimination on the basis of sexual orientation and gender identity. It is expected that this rule will be finalized in 2023 even though several courts have issued rulings against the interpretation on which it is based. 3. Issue a proposed rule to restore the Trump regulations under Section 1557, explicitly interpreting the law not to include sexual orientation and gender identity discrimination based on the textual approach to male and female biology taken by Congress in the ACA, the need to recognize biological distinctions as part of the sound practice of health care, and the need to ensure protections of medical judgment and conscience. DOJ should agree to defend this rule to the Supreme Court if necessary.

4. Issue a general statement of policy announcing that it plans to enforce Section 1557 discrimination bans by refocusing on serious cases of race, sex, and disability discrimination. In particular, OCR should highlight its 2019 investigation and voluntary resolution agreement with Michigan State University based on the sexual abuse of gymnasts by Larry Nassar. OCR should also coordinate with the Department of Education on a public education and civil rights enforcement campaign to ensure that female college athletes who become pregnant are no longer pressured to obtain abortions; pursue race discrimination claims against entities that adopt or impose racially discriminatory policies such as those based on critical race theory; and announce its intention to enforce disability rights laws to protect children born prematurely, children with disabilities, and children born alive after abortions.

5. Issue and finalize the Trump-era draft disability rights regulations concerning crisis standards of care and use of Quality of Life Adjusted Years (QALYs), and reissue and finalize a disability regulation (withdrawn by the Biden Administration) that prohibited discriminatory application of assisted suicide and denial of life-saving treatments for disabled newborns.

OCR should withdraw its pharmacy abortion mandate guidance. OCR should withdraw its “Obligations Under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services” guidance for retail pharmacies,85 which purports to address nondiscrimination obligations of pharmacies under federal civil rights laws and in fact orders them to stock and dispense first-trimester abortion drugs. The guidance invents this so-called requirement and fails to acknowledge that pharmacies and pharmacists have the right not to participate in abortions, including pill-induced abortions, if doing so would violate their sincere moral or religious objections. Moreover, no federal civil rights laws preempt state pro-life statutes.

OCR should withdraw its Health Insurance Portability and Accountability Act (HIPAA)86 guidance on abortion. OCR should withdraw its June 2022 guidance87 that purports to address patient privacy concerns following the Dobbs decision but is actually a politicized statement in favor of abortion and against Dobbs. HIPAA covers patients in the womb, but this guidance treats them as nonpersons contrary to law. The guidance is unnecessary and contributes to ideologically motivated fearmongering about abortion after Dobbs.