Roger Severino repeatedly attributes growing up as the child of Colombian immigrants with low incomes to his commitment to civil rights but pits his own lived experiences with discrimination against those of queer and trans people: “I faced actual discrimination and mistreatment,” he told Politico as part of a story about growing fear among HHS’ LGBTQ employees, some of whom removed their wedding rings and took down photos of partners and spouses at their desks.
“We have seen him appropriate civil rights laws and language to protect those who would discriminate,” said NWLC Senior Counsel Rachel Easter.
Roger made one of the most public displays of his beliefs at a January 2018 HHS ceremony in which he announced a new Conscience and Religious Freedom Division within the civil rights office to “help guarantee that victims of unlawful discrimination find justice.” By “victims,” he meant against health-care workers, not patients.
Until then, OCR operated without a religious liberty arm; it had received 10 conscience complaints from 2005 to 2015, recalled Jocelyn Samuels, Roger’s immediate predecessor, to NPR. That paled in comparison to 20,000 health information privacy and thousands of civil rights complaints received annually. Roger soon self-reported a spike in conscience complaints and used it to justify OCR’s May 2019 “conscience” rule, effectively encouraging a broad range of health-care workers to turn away LGBTQ and abortion patients. Only 20 or so complaints were relevant, let alone valid, HHS ultimately admitted before the U.S. District Court for the Southern District of New York, one of three federal courts to invalidate the conscience rule before it could take effect.
The Severinos may consider their beliefs to be their own, but they seem to underpin how they write policy and transform the courts. To The New York Times, the Severinos erected a wall between their Catholic beliefs and their work dismantling the sacrosanct wall between church and state — a constitutional principle that many conservatives reject as a “constitutional myth.” Carrie invariably promotes “originalist” and “textualist” judicial nominees inclined to disregard that principle in spite of their supposedly close read of the U.S. Constitution. She’s chalked up criticism to religious bias, denouncing scrutiny during Barrett’s 2017 Seventh Circuit U.S. Court of Appeals nomination hearing as “ugly anti-Catholic bigotry.” But plenty of Catholics affirm LGBTQ and reproductive rights — one of them, Sonia Sotomayor, sits on the Supreme Court alongside five Catholic conservatives, including Barrett.
“The leader of a civil rights office should be seeking ways to use the law to provide protections instead of stripping them away.”
Roger’s regulatory approach is similarly out of touch, according to Sharita Gruberg of the Center for American Progress. “When he talks about all the work he does for people who are immigrants, for people with disabilities — which are two communities that I really do believe that he cares about — it is outside of his worldview that there could be trans immigrants, that there could be trans people with disabilities, that there could be pregnant people seeking abortion services or birth control who occupy those identities and whose needs might be even more acute and whose access might be even more limited,” she said.
Section 1557 of the Affordable Care Act was “groundbreaking” because it recognizes how identities overlap and “protects against intersectional discrimination,” explained Rachel Easter of NWLC. “Rolling back these protections in the middle of a global pandemic that is exacerbating systemic racism and health disparities and killing Black and brown folks at alarming rates is unconscionable.”
The long history of health-care providers turning away LGBTQ patients has included death by negligence, as in the case of Black trans woman Tyra Hunter and her death after a car accident in 1995. Roger’s regulatory encouragement could have a chilling effect on their already fraught attempts to access health care.
He went so far as justifying his so-called conscience rule by citing Evan Minton’s then-pending lawsuit against the Catholic hospital that had abruptly canceled one of his gender-affirming procedures. The ACLU later won an appeal, but the hospital chain has asked the Supreme Court to weigh in. “The fact that the Trump administration singled me out … truly knocked me down for about nine months,” Minton testified before the House Committee on Oversight and Reform in February 2020. As for abortion patients having complications? Ambulance drivers can refuse to complete an emergency transport to the hospital, and employers who make them finish the trip could face consequences under the conscience rule, HHS counsel acknowledged in the Southern District of New York case.
Should Democratic presidential candidate Joe Biden prevail on November 3, Roger Severino will be out of a job come January 20, 2021, unless he tries to burrow into Washington’s bureaucracy in another role as a career civil servant. Inauguration Day will again swing open the door to thousands of political appointees. The Biden administration could immediately withdraw the Section 1557 and conscience rules that LGBTQ advocates have called licenses to discriminate, long before appointing Roger’s replacement. If Trump and Severino remain in office, a Democratic-controlled House or Senate could finally choose to grill him in a committee hearing, à la Scott Lloyd, the former HHS political appointee who denied abortion care to pregnant migrant teens and in some cases, tracked their menstrual cycles.
Carrie will lose some measure of power if Republicans lose control of the Senate. As minority leader, Mitch McConnell wouldn’t be able to rubber-stamp conservative judges, even if Trump remains in the White House, but he could try to block liberal ones. Democrats leading the White House and Senate could counter some of the damage to the judiciary, particularly if they ax the strategic hiccup known as the filibuster and potentially expand the Supreme Court. Biden judicial nominations would presumably affirm LGBTQ and reproductive rights. Despite Biden’s lackluster record on abortion, he now supports eliminating the Hyde Amendment, first passed in 1976 to prohibit federal funding for abortions, making it harder for generations of people with low incomes and people of color to access such care.
A Senate Democratic majority would also have the power to investigate operators like Carrie Severino. Federal tax law exempts JCN and other 501(c)(4) “social welfare” political nonprofits from disclosing their donors to the public, earning them the title of “dark money” groups. At Barrett’s nomination hearing, Sen. Sheldon Whitehouse’s dark money presentation listed Carrie alongside Leonard Leo of The Federalist Society, which functions as a conservative honor roll Trump’s judicial nominees must make to reach the federal bench. Leo “effectively controls” JCN, according to a Daily Beast profile that illustrates the complex financial web behind the conservative court movement.
“JCN and Severino provide a front for the special interests using a web of anonymously funded groups to influence — even capture — our courts,” Whitehouse said in an email. “Congress should use its full oversight powers to get to the bottom of this scheme.”
But by January 2021, Carrie and Roger Severino will have executed much of their religious liberty agenda. Election Day will determine whether they get another four years under Trump to continue largely unchecked. Some of the damage can be undone at the regulatory level, but it will take time. The damage to the judiciary is already poised to far outlast a Trump administration, and so is their personal and political union.