FACE Act Repeal Act of 2025

— 501 — Department of Health and Human Services 54. U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, Office of Civil Rights, and Office of the Secretary, “Special Responsibilities of Medicare Hospitals in Emergency Cases and Discrimination on the Basis of Disability in Critical Health and Human Service Programs or Activities,” draft of Proposed Rule, January 14, 2021, https://www.hhs.gov/sites/default/files/infants-nprm.pdf (accessed March 17, 2023). 55. H.R. 26, Born-Alive Abortion Survivors Protection Act, 118th Congress, introduced January 9, 2023, https:// www.congress.gov/118/bills/hr26/BILLS-118hr26pcs.pdf (accessed March 17, 2023). 56. H.R. 7, No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2023, 118th Congress, introduced January 9, 2023, https://www.congress.gov/118/bills/hr7/BILLS-118hr7ih.pdf (accessed March 17, 2023). 57. S. 401, Conscience Protection Act of 2021, 117th Congress, introduced February 24, 2021, https://www.congress. gov/117/bills/s401/BILLS-117s401is.pdf (accessed March 17, 2023). 58. U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, and Office of the Secretary, “Nondiscrimination in Health Programs and Activities,” Notice of Proposed Rulemaking; Notice of Tribal Consultation, Federal Register, Vol. 87, No. 149 (August 4, 2022), pp. 47824–47920, https://www.govinfo. gov/content/pkg/FR-2022-08-04/pdf/2022-16217.pdf (accessed March 17, 2023). 59. Ibid., p. 47916. 60. The regulation was not finalized before the end of the Administration. U.S. Department of Agriculture, Food and Nutrition Services, “Revision of Categorical Eligibility in the Supplemental Nutrition Assistance Program (SNAP),” Proposed Rule, Federal Register, Vol. 84, No. 142 (July 24, 2019), pp. 35570–55581, https:// www.federalregister.gov/documents/2019/07/24/2019-15670/revision-of-categorical-eligibility-in-the- supplemental-nutrition-assistance-program-snap (accessed March 17, 2023). 61. 45 Code of Federal Regulations § 75.300(c) and (d), https://www.ecfr.gov/current/title-45/subtitle-A/ subchapter-A/part-75/subpart-D/subject-group-ECFR911e5e1a30bfbcb/section-75.300 (accessed March 17, 2023). 62. H.R. 1750, Child Welfare Provider Inclusion Act of 2021, 117th Congress, introduced March 10, 2021, https:// www.congress.gov/117/bills/hr1750/BILLS-117hr1750ih.pdf (accessed March 17, 2023), and S. 656, Child Welfare Provider Inclusion Act of 2021, 117th Congress, introduced March 10, 2021, https://www.congress.gov/117/bills/ s656/BILLS-117s656is.pdf (accessed March 17, 2023). 63. S. 3949, Trafficking Victims Protection Reauthorization Act of 2022, Public Law No. 117-348, 117th Congress, January 25, 2023, https://www.congress.gov/117/plaws/publ348/PLAW-117publ348.pdf (accessed March 17, 2023). 64. Kelsey Y. Santamaria, “Child Migrants at the Border: The Flores Settlement Agreement and Other Legal Developments,” Congressional Research Service In Focus No. IF11799, April 1, 2021, https://crsreports.congress. gov/product/pdf/IF/IF11799 (accessed March 17, 2023). 65. Report, Building a Happy Home: Marriage Education as a Tool to Strengthen Families, Social Capital Project Report No. 1-22, March 2022, p. 17, https://www.jec.senate.gov/public/_cache/files/3d102525-6f0d-48ed- 92f4-d71edd468ad6/building-a-happy-home.pdf (accessed March 17, 2023). The cover of the report reflects that the Social Capital Project is “[a] project of the Joint Economic Committee – Republicans.” 66. See, for example, Alan J. Hawkins, “Are Federally Supported Relationship Education Programs for Lower-Income Individuals and Couples Working? A Review of Evaluation Research,” American Enterprise Institute, September 2019, https://www. congress.gov/117/plaws/publ228/PLAW-117publ228.pdf (accessed March 17, 2023). 67. H.R. 8404, Respect for Marriage Act, Public Law No. 117-228, 117th Congress, December 13, 2022, https://www. congress.gov/117/plaws/publ228/PLAW-117publ228.pdf (accessed March 17, 2023). 68. Madison Marino, “Over 1,000 Safety Violations Mar Head Start. Children Deserve Better,” Heritage Foundation Commentary, November 10, 2022, https://www.heritage.org/education/commentary/over-1000-safety- violations-mar-head-start-children-deserve-better. 69. American Hospital Association v. Becerra, 596 U.S. ___ (2022), https://www.supremecourt.gov/ opinions/21pdf/20-1114_09m1.pdf (accessed March 17, 2023). 70. U.S. Department of the Treasury, Internal Revenue Service; U.S. Department of Labor, Employee Benefits Security Administration; and U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, “Coverage of Certain Preventive Services Under the Affordable Care Act,” Notice of Proposed Rulemaking, Federal Register, Vol. 88, No. 22 (February 2, 2023), pp. 7236–7281, https://www. govinfo.gov/content/pkg/FR-2023-02-02/pdf/2023-01981.pdf (accessed March 17, 2023). — 502 — Mandate for Leadership: The Conservative Promise 71. 42 U.S. Code § 238n, https://www.law.cornell.edu/uscode/text/42/238n (accessed March 17, 2023). 72. U.S. Department of Health and Human Services, Health Resources and Services Administration, “Early Childhood Health,” last reviewed October 2022, https://mchb.hrsa.gov/programs-impact/focus-areas/early- childhood-health (accessed March 17, 2023). 73. American Pregnancy Association, “Having a Doula—What Are the Benefits?” https://americanpregnancy. org/healthy-pregnancy/labor-and-birth/having-a-doula/#:~:text=Other%20studies%20have%20shown%20 that%20having%20a%20doula,massage%20to%20reduce%20stress%20and%20anxiety%20during%20labor (accessed March 17, 2023). 74. S. 2372, VA MISSION [Maintaining Internal Systems and Strengthening Integrated Outside Networks] Act of 2018, Public Law No. 115-182, 115th Congress, June 6, 2018, https://www.congress.gov/115/plaws/publ182/ PLAW-115publ182.pdf (accessed March 17, 2023). 75. U.S. Department of Health and Human Services, “Securing Updated and Necessary Statutory Evaluations Timely,” Final Rule, Federal Register, Vol. 86, No. 11 (January 19, 2021), pp. 5694–5764, https://www.govinfo. gov/content/pkg/FR-2021-01-19/pdf/2021-00597.pdf (accessed March 22, 2023). 76. U.S. Department of Health and Human Services, Office of the Secretary, Office of the Assistant Secretary for Health, “Compliance with Statutory Program Integrity Requirements,” Final Rule, Federal Register, Vol. 84, No. 42 (March 4, 2029), pp. 7714–7791, https://www.govinfo.gov/content/pkg/FR-2019-03-04/pdf/2019-03461.pdf (accessed March 18, 2023). 77. U.S. Department of Health and Human Services, Office of the Secretary, Office of the Assistant Secretary for Health, “Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services,” Final Rule, Federal Register, Vol. 86, No. 192 (October 7, 2021), pp. 56144–56180, https://www.govinfo.gov/content/ pkg/FR-2021-10-07/pdf/2021-21542.pdf (accessed March 18, 2023). 78. S. 624, Title X Abortion Provider Prohibition Act, 118th Congress, introduced March 2, 2023, https://www. congress.gov/118/bills/s624/BILLS-118s624is.pdf (accessed March 18, 2023). 79. 50 U.S. Code Chapter 55, https://www.law.cornell.edu/uscode/text/50/chapter-55 (accessed March 22, 2023). 80. 18 U.S. Code § 13, https://www.law.cornell.edu/uscode/text/18/13 (accessed March 18, 2023). 81. Bowen v. American Hospital Association, 476 U.S. 610 (1986), https://tile.loc.gov/storage-services/service/ll/ usrep/usrep476/usrep476610/usrep476610.pdf (accessed 22, 2023). 82. U.S. Department of Health and Human Services, Office of the Secretary, “Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972,” Federal Register, Vol. 86, No. 99 (May 25, 2021), pp. 27984–27985, https://www.govinfo.gov/content/pkg/FR- 2021-05-25/pdf/2021-10477.pdf (accessed March 18, 2023). 83. U.S. Department of Health and Human Services, Office for Civil Rights, “HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy,” March 2, 2022, https://www.hhs.gov/sites/default/files/hhs- ocr-notice-and-guidance-gender-affirming-care.pdf (accessed March 18, 2023). 84. Heckler v. Chaney, 420 U.S. 821 (1985), https://caselaw.findlaw.com/us-supreme-court/470/821.html (accessed March 18, 2022). 85. U.S. Department of Health and Human Services, Office for Civil Rights, “Guidance to Nation’s Retail Pharmacies: Obligations Under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services,” content last reviewed July 14, 2022, https://www.hhs.gov/civil-rights/for-individuals/ special-topics/reproductive-healthcare/pharmacies-guidance/index.html (accessed March 18, 2023). 86. H.R. 3103, “Health Insurance and Portability and Accountability Act of 1996, Public Law No. 104-191, 104th Congress, August 21, 1996, https://www.congress.gov/104/plaws/publ191/PLAW-104publ191.pdf (accessed March 18, 2023). 87. U.S. Department of Human Services, “HIPAA Privacy Rule and Disclosures of Information Relating to Reproductive Health Care,” content last reviewed June 29, 2022, (accessed March 18, 2023). See also “Protecting the Privacy and Security of Your Health Information When Using Your Personal Cell Phone or Tablet,” content last reviewed June 29, 2022, https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/ cell-phone-hipaa/index.html (accessed March 18, 2023).

— 558 — Mandate for Leadership: The Conservative Promise An egregious example of the need for such a review is provided by the depart- ment’s use of the Freedom of Access to Clinic Entrances (FACE) Act55 to harass pro-life demonstrators while not pursuing similar investigations of shocking acts of violence committed against pro-life pregnancy resource centers. On the morning of September 23, 2022, pro-life activist Mark Houck was arrested by more than 15 FBI agents at his home in Pennsylvania in front of his wife and small children. Agents came to his door with guns drawn to arrest the 48-year-old father of seven whose alleged crime involved a minor altercation with an activist who was harass- ing one of his children in front of an abortion clinic almost one year before Mr. Houck’s arrest by the FBI.56 Similarly, Paul Vaughn, a 55-year-old father of 11, was arrested at his home in Mt. Juliet, Tennessee, by armed FBI agents for allegedly participating in a peaceful protest at an abortion clinic one year earlier.57 These arrests stand in stark contrast to the department’s virtual silence on the wave of vandalism and violence directed at religiously affiliated institutions, includ- ing pregnancy resource centers, following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.58 The Catholic News Agency reported more than one hundred such incidents as of September 2022.59 By engaging in disparate and viewpoint-based enforcement of an already con- troversial law like the FACE Act against pro-life activists, the DOJ has needlessly undermined its credibility with law-abiding people of faith. The department should make every effort to uphold equal protection of the law and avoid politically moti- vated and viewpoint-based prosecutions. Specifically, it should: l Ensure that its review extends beyond ending the absurd double standards embodied in the ongoing campaign of FACE Act prosecutions and instead be a thorough and holistic review of all DOJ activities, including all consent degrees and settlement agreements currently in force. l Seek to terminate any unnecessary or outdated consent decree to which the United States is a party. l Consider pursuing intervention in other matters where consent decrees or settlement agreements continue to bind parties years or decades after the fact. l As its review concludes, and consistent with applicable law, take appropriate action in all cases, including those on appeal. l Enact policies and regulations that prohibit settlement payments to third parties. — 559 — Department of Justice Engaging in Zealous Advocacy for and Defense of the Constitution and Lawful Administration Regulations and Policies. The Department of Jus- tice has the exclusive responsibility for the “conduct of litigation in which the United States, an agency, or officer thereof”60 is involved and has been charged with the supervision of “all litigation to which the United States, an agency, or officer thereof is a party.”61 However, in politically contentious cases, Assistant United States Attorneys and other line prosecutors during conservative Admin- istrations seek to influence outcomes of cases not because of any legal deficiency in the case or policy being defended, but by refusing to take certain positions, by writing public letters of protest, and by engaging in faux resignations from certain internal appointments. This can cause the department to take positions that are inconsistent with the interests of the President and his appointees in other places throughout the Administration. While the supervision of litigation is a DOJ responsibility, the department falls under the direct supervision and control of the President of the United States as a component of the executive branch. Thus, and putting aside criminal prosecutions that can warrant different treatment, litigation decisions must be made consistent with the President’s agenda. This can force line attorneys to take uncomfortable positions in civil cases because those positions are more closely aligned with the President’s policy agenda. Ultimately, the department will have to make tough calls as it manages its litiga- tion, but those calls must always be consistent with the President’s policy agenda and the rule of law. A line attorney should never either directly or indirectly pursue a policy agenda through litigation that is inconsistent with the agenda of his or her client agency or the President. The department should also be cognizant of any attempts to slow litigation and outlast the Administration to avoid finality. The next conservative Administration should therefore: l Issue guidance to ensure that litigation decisions are consistent with the President’s agenda and the rule of law. l Ensure that, consistent with this principle, the department’s leadership is prepared to impose appropriate disciplinary action as circumstances arise. Affirming the Separation of Powers. Federal courts have jurisdiction to deal with a wide array of issues in law and equity in the United States. The increas- ingly aggressive posture of federal courts does not change one constitutionally immutable fact: All three branches of the federal government retain not just the right, but the obligation to assess constitutionality. It is this obligation that is the foundation of the separation of powers.

— 483 — Department of Health and Human Services l Readdress the National Strategy to Support Family Caregivers. While in theory the strategy aims to support family members with duties to care for older family members, the plan is overly focused on racial and “LGBTQ+ equity.” The strategy should be examined to establish an efficient plan to support caregivers and their families. There should also be a review of its COVID-19 policies. HEALTH RESOURCES AND SERVICES ADMINISTRATION (HRSA) l Congress should allow CMS to use the 340B data that HRSA collects rather than having CMS conduct its own survey, especially in view of the U.S. Supreme Court’s American Hospital Association v. Becerra decision.69 The legislation should also create penalties for those who do not respond to HRSA’s data collection. l Legally define the locus of service as where the provider is located during the telehealth visit rather than where the patient is. With such a definition, states could continue to reserve their powers to establish the standards for licensure and scope of practice. The providers could ensure continuity and consistency of care no matter where their patients might move while maintaining the licenses that make the most sense for them. Americans are far more mobile and technologically advanced today than they were when most health care laws were written. Telehealth has become increasingly important, particularly during the height of the COVID-19 pandemic. It also has great potential in rural and other areas where there are shortages of health care providers. HRSA’s Office for the Advancement of Telehealth includes a program known as the Licensure Portability Grant Program, which bolsters state efforts to reform licensing laws to maximize telehealth flexibility. HRSA does not have the authority through this office to dictate licensure laws; that power has typically been reserved to the states. However, telehealth across state lines, when permitted, is interstate commerce, which can be regulated by the federal government according to the Constitution. l Restore Trump religious and moral exemptions to the contraceptive mandate (also a CMS rule). HHS should rescind, if finalized, the regulation titled “Coverage of Certain Preventive Services Under the Affordable Care Act,” proposed jointly by HHS, Treasury, and Labor.70 This rule proposes to amend Trump-era final rules regarding religious and moral exemptions and accommodations for coverage of certain preventive services under the ACA. Preventive services include contraception, and — 484 — Mandate for Leadership: The Conservative Promise it appears the proposed rule would change the existing regulations for religious and moral exemptions to the ACA’s contraception mandate. There is no need for further rulemaking that curtails existing exemptions and accommodations. l Require HRSA to use rulemaking to update the women’s preventive services mandate. The contraceptive mandate issued under Obamacare has been the source of years of egregious attacks on many Americans’ religious and moral beliefs. The mandate was issued as part of the women’s preventive services guidelines, which were issued without any rulemaking that involved public notice and an opportunity to comment. Instead, HRSA issued and changed the mandate by simply posting changes to its website. HRSA also started off not requiring coverage of fertility awareness–based methods of family planning, then requiring them, and then removing the requirement without notifying the public. A federal judge recently ruled that this failure to undergo notice and comment in issuing the mandate is unlawful. HRSA should be required to repromulgate any women’s preventive services mandates through the notice and comment process that is compliant with the Administrative Procedures Act. Moreover, since the Obama Administration HRSA entered into long- term contracts with the pro-abortion American College of Obstetricians and Gynecologists (ACOG) and related entities to serve as an exclusive adviser with respect to the content of this mandate, HRSA has used this arrangement to ignore comments that members of the public were sometimes able to submit in the process, and ACOG has abused its position to attack HHS’s allowance of religious and moral exemptions to the contraceptive mandate. HHS should rescind these contracts and establish an advisory committee that is compliant with the Federal Advisory Committee Act and has members that are committed to women’s preventive services and are not pro-abortion ideologues. l Expand inclusion of fertility awareness–based methods and supplies to family planning in the women’s preventive services mandate. The ACA requires coverage of and prevents insurance plans from imposing any cost-sharing requirements on women who obtain preventive care and screenings as defined by HRSA. In 2016, HHS included “instruction in fertility awareness-based methods” as part of this requirement. However, in December 2021, HHS removed that language from its list without using the notice-and-comment process or giving any rationale, both of which are mandated by the Administrative Procedures Act. In August