Proposed HHS Rule Change Would Lift Federal Ban on Traditional Religious Adoption Agencies

The federal Department of Health and Human Services (HHS) has proposed a rule change that would reverse Obama-administration regulations which have blocked government from partnering with traditionalist faith-based agencies in placing children for adoption or foster care.

While it is not yet clear what effect the move will have on what has become a controversial issue in many states, the proposal was welcomed by religious liberty advocates.

The previous regulation, introduced in the twilight of the Obama administration in 2016, guided government bodies not to contract with agencies that exclusively place children in homes with traditional family structure. The move, mirrored by laws in many left-leaning states and municipalities, left many faith-based charities with a choice of violating their religious beliefs or facing legal reprisals for continuing their efforts to find families to raise children in need of homes.

Rabbi Abba Cohen, Agudath Israel of America’s vice president for government affairs and Washington director, told Hamodia that, while further review was necessary, the proposal’s intent is welcome.

“As a matter of constitutional law, no religious adoption agency should be required to place children in a family setting that is contrary to their beliefs,” he said. “[The Obama era change] also carries with it bad public policy ramifications; if less agencies are active, that makes it all the more difficult to find suitable homes for these children.”

In addition to discrimination based on family structure, faith organizations have also been under scrutiny from secularist organizations for policies that exclusively place children in homes of practitioners of that group’s religion. Rabbi Cohen said that while the Agudah supports the right of an organization to follow such a policy, HHS and local governments had failed to create exceptions for when the child in question was born into a different faith, citing a hypothetical situation of a Jewish child whose case is presented to a Christian agency.

“What’s in the best interest of the child has to be the priority here, and we support the idea that children should be brought up in an atmosphere that is consistent with the child’s heritage and for agencies to base policy on that. But there’s another part of this discussion that’s fallen between the cracks about children that end up at an agency that is not associated with their religion at birth, and that’s something of serious concern to us which still has to be worked out.”

The proposed change, released by HHS this past Friday, directs the federal government to disregard the 2016 directive and instructs relevant agencies to uphold existing civil rights protections, as well as those ensuring constitutional protections for religious groups to operate in accordance with their beliefs.

“The proposed rule represents the Trump Administration’s strong commitment to the rule of law ― the Constitution, federal statutes, and Supreme Court decisions,” said HHS in a statement. “These require that the federal government not infringe on religious freedom in its operation of HHS grant programs and addresses the impact of regulatory actions on small entities. HHS is committed to fully enforcing the civil rights laws passed by Congress. The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion. HHS is affirming that it will comply with all applicable Supreme Court decisions in administering its grants programs.”

HHS will determine whether the proposal will be adopted after the close of a 30-day public comment period.

A long list of left-wing politicians and organizations decried the proposed changes. Leslie Cooper of the American Civil Liberties Union said they will “open the door to discrimination.”

“It is despicable that this administration would authorize taxpayer-funded child welfare agencies to discriminate against children and turn away qualified families they desperately need,” she said.

The HHS change would formally re-open the door of traditionalist religious agencies to some $7 billion in federal funding earmarked for child welfare. However, it will have no effect on state and local laws that have barred many religious groups from participating in finding suitable homes for children in need.

Catholic Charities, one of the nation’s leaders in child placement, was forced to cease its adoption services in Massachusetts and California in 2006 and in Illinois in 2011.

In many other states and cities around the country, religious organizations face similar challenges in working with laws that force them to adopt policies in line with progressive social views. Several legal challenges are currently pending.

Nick Reaves, an attorney for Becket, a law firm which is representing two faith-based adoption groups in lawsuits, one against the city of Philadelphia and the other against the state of Michigan, said that while the change does not require state and city governments to make any adjustments, it takes away one of their arguments.

“States used the 2016 HHS rule to say, ‘Not only do we have our own policy, but there is this federal regulation that prevents us from contracting with these religious agencies, so we don’t want to lose our federal funding’,” he told Hamodia. “These changes won’t have a direct effect on those cases, but it’s taking away something bad.”

Mr. Reaves echoed Rabbi Cohen’s message that barring religious groups from participation in adoption and foster care ultimately hurts children in need. He pointed to statistics showing that, on average, families linked with children through religious agencies house foster children for two years longer than non-religious ones, and that religious homes are more likely to take in children with disabilities or sets of siblings.

“One thing we’ve showed is that faith-based organizations are really good at recruiting families that serve longer…and permanency is something that’s very important for these kids,” said Mr. Reaves.

Becket has asked for the Supreme Court to weigh in on its case, Fulton v. Philadelphia, where it is representing a group of foster mothers against the city government. Mr. Reaves said that while the HHS change was welcome, he hoped the issue would be settled by the high court.

“It’s a pretty major issue, with a lot of litigation going on all over the country, and lots of agencies have been forced to close,” he said. “HHS’s move is a step in the right direction, but what we need is for the Supreme Court to weigh in on this and say that groups don’t lose their First Amendment rights just because they contract with the government.”