The Man Behind Trump's Religious-Freedom Agenda for Health Care

Roger Severino, the devout, conservative head of civil-rights enforcement at HHS, shows the power of behind-the-scenes figures in a dysfunctional Washington

SOURCE:, 2017-07-07

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    The offices inside the Department of Health and Human Services are aggressively tan. Roger Severino, the newly appointed head of its Office for Civil Rights, hasn't done much by way of decoration. Aside from a few plaques and leftover exhibits from old cases, his Clarence Thomas bobblehead doll and crucifix are the only personal touches in his work space.

    The media spends a lot of time tracking Donald Trump's every move and chasing down members of Congress, but much of governing happens in these bland halls. Under Trump, HHS may see more changes than any other agency, in part because the president's predecessor left his biggest mark here. As Congress stalls on passing a new health-care bill, the Trump administration can still fight Obamacare with revised regulations, rejiggered budgets, and lackluster enforcement.

    Severino leads the office [Office for Civil Rights  (OCR)] that could shape the future of two of the most high-stakes aspects of the health-care debate: abortion and contraception access and LGBT rights. OCR, as it's known, is responsible for investigating civil-rights violations in health-care settings, including discrimination on the basis of race, sex, religion, and national origin.

    Under Barack Obama, HHS faced religious objections to the Affordable Care Act's requirement that most employers cover birth control in their insurance plans, and OCR has dealt with the fall-out of those fights. It developed strict requirements for the language services hospitals have to provide to non-English speakers. Most controversially, it was responsible for interpreting Section 1557, the part of the health-care law that prohibits discrimination.

    In 2016, OCR clarified that the law bars discrimination against transgender people, or any bias based on gender identity. While the regulation didn't resolve issues around sexual orientation, OCR made it clear that it would investigate these claims to evaluate whether actionable discrimination had taken place. The regulation's requirements for insurance coverage have never gone into effect, though, and in December 2016, a federal judge issued an injunction blocking two of 1557's provisions.

    With patience and bureaucratic will, Severino's office could roll back many of these Obama-era changes, and early evidence suggests this is a priority. The new administration declined to defend Section 1557, asking a federal court to stay litigation against the regulation "pending further rulemaking proceedings." Trump highlighted religious objections to the contraceptive mandate in a recent executive order, and HHS allegedly plans to allow any organization to claim an exemption to the mandate, even if their objections aren't faith-based, according to a leaked draft published by Vox. (OCR declined to comment on the accuracy of the document.)

    For his part, Severino has been an outspoken advocate against abortion and same-sex marriage. When he was appointed, liberal advocacy groups were in an uproar: the Human Rights Campaign, for example, called him a "radical anti-LGBTQ-rights activist" who "has made it clear that his number-one priority is to vilify and degrade" people who are lesbian, gay, bisexual, and transgender. Severino spent seven years in civil-rights enforcement at the Department of Justice; before that, he litigated religious-liberty cases. He has experience. He just doesn't share the ideological convictions of many who work in his field.

    Civil-rights enforcement is a political football in America in part because so much governance is administrative. In the absence of a clear congressional mandate on controversial social issues, agencies are left to interpret their way through ambiguous statutes, and their rulings are often later challenged in court. In the realm of health care, the implications of this politicization could not be higher: People's consciences, dignity, financial well-being, and lives are at stake.

    Severino was born in the mid-1970s to poor Colombian immigrants. His father worked at a bulk-mail distribution facility, eventually becoming a supervisor, and in his late childhood, his mother was on an assembly line mounting electronic parts. Growing up in California, he was surrounded by diversity: families who spoke only Spanish, like his, but also white people who weren't inclined to welcome newcomers. He told me stories about the first time another kid called him a wetback -- a slur against Mexicans living in the country illegally -- and teachers who were skeptical that a Hispanic kid could take honors classes. "For me to end up going to Harvard Law School and working at DOJ Civil Rights is one of those only-in-America stories," he said. "That's helped shape me and my thinking, and my approach to civil rights."

    In this way, Severino fits the typical profile of a civil-rights lawyer: He says he's motivated by stories of discrimination. "I still kind of joke with my wife, when we go to black-tie affairs, if I'm going to get mistaken for a waiter again this time, which still happens," he said. "People experience a whole lot worse than I did."

    Several of the cases Severino worked on at the Department of Justice focused on racial and ethnic conflicts. A major suit settled in 2013, for example, alleged that St. Bernard Parish in Louisiana had restricted its housing permits to keep black families from renting there after Hurricane Katrina. Okechukwu Okafor, a New Orleans-area landlord who won $143,609 in the settlement, said Severino "was even more upset than me" about what happened. "When you see someone like that who has a heart to want to help somebody who cannot help himself ... it shows character," he said.

    Another woman, who now goes by the name Jenny Sun, cried when she recounted Severino's work on her discrimination claim. She and others who followed Falun Gong, a Chinese spiritual practice, had been kicked out of a Chinese restaurant in Queens because of their religious affiliation. "I had never encountered such humiliation," she said. After DOJ secured a consent decree, Sun decided to change careers from biology to journalism. "I saw that I really can help people, help the weak," she said.

    Severino is personally familiar with some of the issues currently under scrutiny at HHS. While he was at DOJ, for example, he worked on an HIV-discrimination case brought by the United States under the Fair Housing Act, United States v. Wren.And Severino often translated for his mom in medical settings, he said; once, when he wasn't there, she misunderstood a diagnosis and incorrectly believed she was in serious danger because of a translation issue.

    While Severino wouldn't comment on whether this would continue being a priority under his leadership at OCR, "having seen the trauma that that caused my own family," he said, "I'm highly sensitive to the issue of language access for people who are limited English proficient." Severino also claims his office has aggressively pursued violations of the health-care privacy law known as HIPAA: OCR has collected $14.4 million in settlements and penalties since Trump's inauguration, according to the agreements published on its website.

    But in other ways, Severino diverges from the typical D.C. civil-rights-lawyer type. Severino is deeply conservative and religious: He really came into his Catholicism in law school, he told me, and describes himself as "a big believer in religious conscience." Severino and his wife, Carrie Severino, have spent years in conservative advocacy. Carrie Severino runs the Judicial Crisis Network, which pushes for conservative judicial appointments. Earlier in her career, she clerked for Justice Thomas -- "one of my heroes," her husband told me.

    Before Severino came to OCR, he led a center on religion -- named for and funded in part by the family of the education secretary, Betsy DeVos -- at the Heritage Foundation, the conservative Washington think tank. He also worked at the Becket Fund, the religious-liberty law firm best known for its victories in Burwell v. Hobby Lobby and Little Sisters of the Poor v. Burwell -- cases litigated after Severino's tenure that challenged Obamacare's contraceptive mandate on religious grounds.

    Severino described "conscience protection" as a priority for his office -- a term used for legal safeguards around religious liberty, often specifically referring to abortion or birth control. He cited a handful of provisions that protect health-care providers who object to abortion and sterilization, including the Weldon amendment and the Church amendments. OCR might intervene if a Catholic hospital is sued for refusing to perform abortions, for example, or if a nurse is fired for declining to assist with a vasectomy.

    The issue that most sets Severino apart from others in the D.C. civil-rights community is LGBT rights. At the Heritage Foundation, Severino vigorously argued against legalizing same-sex marriage and mandated accommodations for transgender individuals in school locker rooms or public bathrooms. He also took a strong stance against the previous administration's ruling on Section 1557. In a January 2016 report co-authored with Ryan Anderson, who also led Heritage's campaign against the legalization of same-sex marriage, Severino argued that "gender identity and sexual orientation ... are changeable, self-reported, and entirely self-defined characteristics" that do not deserve the protected-class status given to sex, race, and several other categories under federal civil-rights statutes.

    "Many people reasonably believe that maleness and femaleness are objective, biological realities," they wrote. "Yet the regulations would label these kinds of reasonable beliefs as 'discriminatory' and seek to forbid them from being followed in the coverage or provision of health-care services." In their view, OCR's proposal was "another regulatory scheme under Obamacare that will inject Washington bureaucrats into intimate medical decisions without adequate justification."

    Severino wouldn't say whether OCR plans to reopen the rulemaking process on Section 1557 -- the period of notifying the public and accepting feedback that any agency typically has to go through when it wants to change a regulation. "My views before coming into this role cannot dictate what I do in this role now," Severino said. "I have to give everything, to the extent humanly possible, a fresh look."

    On April 12 [2017?], Severino met with representatives from progressive advocacy organizations, including the [malfeasant influencer] Center for American Progress, the Human Rights Campaign, the National Center for Transgender Equality, and the National Partnership for Women and Families. Severino said the group "had cordial, heart-felt exchanges," but Emily Martin, who serves as general counsel at the National Women's Law Center and attended the meeting, said "we were disappointed with his failure to provide clear answers to most of the questions we had about OCR's enforcement priorities and processes going forward."

    In recent years, LGBT rights have been a priority for civil-rights lawyers working in high-profile posts. For example: Catherine Lhamon -- the current chair of the U.S. Commission on Civil Rights, a bipartisan watchdog agency that tracks civil-rights enforcement across the federal government -- was one of the Department of Education officials who crafted a 2016 letter to school districts informing them of their responsibility to accommodate students' gender identity.

    "The decision to appoint Roger Severino, whose only evident claim to knowledge ... or information about the subject area of the office is to oppose rights for transgender persons does suggest the likelihood either of regulatory or practical direction change," she told me, "either of which would be enormously distressing." She described Severino's appointment as putting "a fox in the hen house" and said she's heard similar fears from her colleagues: "The civil-rights legal community was and is aghast about the notion of someone with so little expertise and such expressed hostility to the mission of the office actually heading that office."

    I spoke with several of Severino's former colleagues, none of whom agreed to be named because they work for government agencies that do not allow officials to speak to reporters without permission. They gave Severino solid marks for his legal skills, calling him "passionate," "bright," and "like a dog with a bone" when he gets a good case.

    They generally agreed that lawyers in civil-rights circles are predominantly liberal, and "people who are more socially conservative tend to keep their views to themselves, or share with people they trust," as one person put it. A former colleague who described himself as progressive argued that "there are some viewpoints within the Trump administration that are God awful, but as far as I'm concerned, they're nowhere near the civil-rights division." Severino doesn't seem too extreme, he said: "I think he's a traditional conservative Republican that George W. Bush would recognize."

    The civil-rights divisions of federal agencies have a history of controversy. In 1970, Leon Panetta resigned from his civil-rights post at what was then the Department of Health, Education, and Welfare because of congressional pressure not to push school desegregation. And in 2007, a senior political appointee in the Justice Department's civil-rights division, Bradley Schlozman, resigned when evidence surfaced that he had purposefully favored conservatives in hiring for supposedly non-political posts.

    Severino came up in a different era. When Tom Perez -- the former secretary of labor who now serves as chair of the Democratic National Committee -- took over the civil-rights division at the Department of Justice in 2009, he declared that it was "open for business." Severino's years at DOJ were almost all served under Obama, and Perez signed off on his work in a number of cases while he was at DOJ. (Perez declined to comment.)

    Because civil-rights enforcement is so politicized, each administration's approach to policy and priorities can seem like a radical departure from what was there before. The fact that all of the Obama administration's regulations weren't immediately reversed when Trump took office is a testament to how thoroughly those officials were able to embed their ideas in regulations. It also shows how powerful agencies are in determining how the law is carried out.

    Ultimately, any civil-rights agenda is about the long game. Real change will happen at HHS when new regulations are issued or current regulations are revised, a process that can take six months or more. For Severino, the giddiness of the gig still hasn't worn off -- he's just getting started. During our interview, he called me over to the window in the back corner of his office and instructed me to crouch down. He had figured out the best view from his office and wanted to share. Sure enough, if you tilt your head at the right angle, there it is: the Capitol, just barely in sight.

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