According to regulations.gov, HHS received 10,729 public comments, of which 10,649 have yet to be posted. | Getty Images HHS defends withholding comments critical of abortion, transgender policy HHS’ selective disclosure could lead to legal challenges and has alarmed health care groups.

HHS is defending its decision to withhold more than 10,000 public comments on a proposal that could affect access to abortion and care for transgender patients.

“There has been a voluminous response to the [request for information], and the center’s team is working through a review of the submissions,” Shannon Royce, who leads the agency’s Center for Faith-based and Neighborhood Partnerships and is overseeing the proposal, said in a statement on Monday night.


The Trump administration in October sought public comments on its plan to reduce HHS' regulations for religious and faith-based groups. Allies and opponents of the plan say the stakes are high: Loosening the current requirements could allow such groups to cite religious exemptions and deny certain services and care. For example, Catholic hospitals could gain new protections to refuse to provide abortions.

While HHS received 10,729 comments on its proposal, the agency has only posted 80 comments — less than 1 percent of all submissions — that overwhelmingly back the administration’s anti-abortion policies or attack regulations advanced by the Obama administration, such as a rule forcing health care providers that accept federal funding to provide services to transgender patients. Sources with knowledge of HHS' decision say the agency hand-picked the comments that it released.

HHS’ selective disclosure could lead to legal challenges under multiple laws and is raising new questions at a time when the agency’s transparency is already under scrutiny. "The government can’t discriminate in a public forum," said lawyer Rachael Klarman of Democracy Forward, noting that HHS appears to be prioritizing comments that agree with its position. "There’s some recent case law that would suggest that’s a pretty big problem under the First Amendment."

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Lawyers also said that HHS is at risk of violating the E-Government Act, the Administrative Procedure Act and other transparency requirements related to rulemaking. If HHS doesn't post and address comments on the rule, “there may be grounds" for a challenge, said Alison Tanner of Americans United for Separation of Church and State, who filed a Freedom of Information Act request seeking the missing comments three weeks ago.

Under those laws, agencies must solicit and post public comments as part of the rulemaking process. They typically post all comments received through the web site regulations.gov.

However, HHS officials said that since the comments were in response to a request for information, instead of an actual rule, there is no requirement that they be posted.

Some lawyers said that holding back comments the agency disagrees with could be insignificant given the likely end result. "The rulemaking process is Kabuki theater," said Josh Blackman, an associate law professor at the South Texas College of Law Houston. “It’s not going to matter what liberal groups submit — even though it’s supposed to."

Blackman added that HHS has time to post all comments before the rule is finalized. "It might be a little early to panic that the sky is falling," he said.

The proposal, which was posted on Oct. 25 and invited public comment through Nov. 24, represents a top priority of religious groups that have chafed under regulations such as the 2016 Obama administration directive on serving transgender patients. HHS chose to repeatedly highlight comments that attacked that regulation.

The Coalition Against Religious Discrimination — which includes the ACLU, the NAACP and 44 other groups — warned HHS against using its proposal to craft new exemptions for faith-based organizations, which could then pursue their own hiring and health care policies and potentially exclude patients seeking access to abortion, transgender-related care or other services that might provoke objections from religious conservatives.

"Taxpayer-funded social-service providers should not be allowed to use a religious litmus test to determine whom they will serve or employ, or to refuse to perform functions for which they are receiving public funds," Americans United’s Tanner wrote in her FOIA request submitted to HHS last month.

Groups that submitted still-unreleased criticism of HHS' proposal say they're mystified by the agency's decision not to post replies, particularly since some of the groups have made their comments public on their own. “It’s very apparent that there’s something in the comments that doesn’t fit into their narrative,” said Mara Keisling, who runs the National Center for Transgender Equality and submitted comments that have yet to appear. So, too, are multiple staffers inside the health agency who spoke with POLITICO on condition of anonymity.

According to regulations.gov, HHS received 10,729 public comments, of which 10,649 have yet to be posted. HHS did post 71 comments that strongly support its proposal or raise related religious concerns. Those positive comments were heavily front-loaded at the start of the comment period; for the first two weeks, all 36 comments that the agency made public supported its position.

Meanwhile, HHS made public just nine critical comments, six of which were included in its final batch of posting. A person with knowledge of HHS' decision said that administrators, facing questions from outside the agency, posted a flurry of last-minute criticism in hopes of making a curated selection of comments appear more balanced.

HHS’ proposal is being overseen by Royce, who previously served as chief operating officer of the conservative Family Research Council until May 2017. Royce is a prominent anti-abortion activist, and during her time running the FRC’s day-to-day operations, the group posted a 42-page issue brief that termed transgender people as "an assault on the sexes."

"Neither lawmakers … nor medical professionals should participate in or reinforce the transgender movement's lies about sexuality," the brief concluded. "Nor should they be required by the government to support such distortion."

Many of the favorable comments on the proposal suggest the need for a broad accommodation for faith-based providers.

"As a family physician with a worldview that acknowledges a loving God who has authority that supersedes any person or government, I cannot comply with recent federal legislation including the HHS Transgender Mandate," a commenter identified as John Petrilli of Premier Community Healthcare wrote in a comment posted by HHS on Nov. 13.

Other comments called for a reordering of priorities.

"I am very concerned about the transgender mandate," added a commenter identified as Andrea Herman, a doctor with Catholic Health Initiatives, which HHS also posted on Nov. 13. "I think the feds have no business spending dollars and enacting mandates for transgender medical treatment … until we have made significant headway and thereby reduced health-care spending on matters that affect much more of us, such as obesity."

HHS is under agency-wide scrutiny for its messaging and transparency. Staff at the CDC last week were instructed not to use words like "fetus" and "transgender" in documents concerning the agency's fiscal 2019 budget, The Washington Post reported on Friday — although the CDC director said there was no ban in place. HHS in October also posted a draft strategic plan that repeatedly referenced faith-based organizations and used language similar to anti-abortion groups. While abortion-rights, LGBT and other advocacy organizations criticized the draft and said they would submit comments as HHS requested, the agency has not made available the comments it received.

Observers say the proposal affecting faith-based groups is potentially more significant because it specifically lays the groundwork for rulemaking. The stakes are high for both critics and advocates of HHS' proposal because the agency is the federal government's largest grant-maker and annually awards hundreds of millions of dollars in funding to faith-based organizations.

"[The] blanket religious exemptions could lead to harm to beneficiaries and employees, and could undermine the effectiveness of HHS programs," the anti-discrimination coalition wrote in a public comment last month that HHS has yet to publish. "Individuals should not be denied the services they need or the constitutional and civil rights protections to which they are entitled because of the religious beliefs cited by the organization paid by HHS to deliver those services."

Health care advocates say that religious and faith-based groups have long sought to relax the limits on their use of public funds. "We’re already seeing a variety of ways in which religious and faith-based organizations are inserting restrictions into the health care they’re willing to provide — with public funds — to vulnerable populations," said Americans United's Tanner. She recalled how Catholic bishops took a multimillion-dollar contract from HHS in 2006 to help victims of illegal trafficking and then restricted the victims' access to contraception and reproductive health services. After a legal battle, the case was dismissed in 2013.

Under the Administrative Procedure Act, agencies must solicit public comment as part of the rulemaking process and typically post all comments received through regulations.gov. For instance, the Obama administration last year posted more than 54,000 public comments — many of which were critical — received through a request for information on its contraception coverage policy.

According to a rulemaking toolkit posted on HHS' website, "Public comments play an important role in shaping and revising regulations." The site offers examples of how public comments improved the agency's rules and encourages submissions.

