National Review
Four Ways to Help Religious Freedom Recover from Biden-Harris Attacks
By Andrea Picciotti-Bayer
November 17, 2024 6:30 AM
The Biden administration damaged this fundamental right. Here’s how the Trump administration could restore it.
After the assaults on religious freedom during the last four years of the Biden-Harris administration, the new Trump administration has a great deal of malicious damage to repair. From attacks on foster parents of faith to attempts to strongarm religious hospitals into procedures at odds with their beliefs, the extent of the obsessive opposition to religious freedom has been relentless.
I’m very optimistic that we can recover our first freedom, as it’s often called. But it won’t be easy, because the progressive bureaucracies contemptuous of the consciences of Americans of faith, while they will inevitably lose crucial access to the White House after January 20, are still resourceful and extremely well funded.
Here are four steps that the new administration should prepare to tackle in restoring this fundamental right:
Bolster medical conscience rights. The Biden administration, under the command of the grimly ideological Xavier Becerra, secretary of the Department of Health and Human Services, walked back the federal government’s commitment to protect medical conscience rights for individual providers and health care institutions, especially those who oppose abortion and gender reassignment interventions. The second Trump administration must renew the government’s commitment to preserve (and, where necessary, reinstate) medical conscience rights.
Many existing medical conscience laws lack private rights of action for health care providers or institutions who find themselves pressured to violate their consciences. Lawmakers must rectify this. In the meantime, HHS’s Office of Civil Rights (OCR) under the new Trump administration must stand up for doctors, nurses, and hospitals that refuse to kowtow to a fanatical progressive agenda.
The first Trump administration was exemplary on this front. OCR had dedicated staff within a Religious Freedom Division. That division must be reopened.
Providers and covered institutions must be made aware of their rights under federal law so that health care institutions, doctors, nurses, and technicians are never pressured to work against their conscience. And if their rights of conscience are not respected, the new Trump administration must step in on their behalf.
Start enforcing and promoting existing laws. The government’s commitment to religious freedom must be renewed across all federal agencies, starting with our nation’s top law enforcement agency — the Department of Justice.
The DOJ, working with the Solicitor General’s office, must stand up for religious freedom in our federal courts — including the Supreme Court. Whether it brings individual cases against state or local actors for violating constitutional or statutory right, or serves as a friend of the court in cases brought by private entities, the federal government must not be silent.
The Biden-Harris administration lost few opportunities to genuflect to progressive interest groups at the expense of religious interests. In the cases before the Supreme Court that involved religious freedom and free speech issues, the office of the solicitor general was often absent or appeared in support of those trampling on the rights of religious Americans.
And what about the investigation of assaults on religious liberty? The Biden-Harris administration weaponized the Department of Justice to prosecute peaceful protesters in front of abortion clinics even after the Supreme Court dismantled the fiction of Roe v. Wade and a constitutional right to an abortion. At the same time, the DOJ paid virtually no attention to attacks on churches and pro-life pregnancy centers, even though these places are covered by the same law — the Freedom of Access to Clinic Entrances Act.
Scrap recent rule-making. The third issue is to walk back federal rules, regulations, and guidance finalized during the Biden-Harris administration that advanced progressive policy priorities with little regard for traditional religious belief in opposition. These are particularly pernicious when it comes to imposing gender ideology in the workplace, on vulnerable children in the foster care system, and as a matter of “health care.” These rules, regulations, and guidance must be erased. Instead of replacing them, the Trump administration can simply point to the Constitution’s great respect for the free exercise of religion — existing federal laws that protect religious liberty, including the check that the Religious Freedom Restoration Act places on the federal government when religious exercise or belief is substantially burdened.
Maintain the Supreme Court’s originalist majority. While I do not suggest that any justice should do so, it’s possible that one or more sitting Supreme Court justices will retire in the coming years. During President Trump’s first term, he wisely nominated justices who were committed to an originalist interpretation of the Constitution. Such a perspective provided essential protection for religious liberty, particularly in vindicating the First Amendment’s guarantee of the free exercise of religion. Maintaining such a majority on the Court is crucial.
To sum up, we don’t need a larger administrative state; we just need a federal government willing to stand up for religious liberty. For four agonizing years, we have not had one. Plans to repair the damage must begin immediately.
