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New Justice Department official opposed Little Sisters of the Poor in contraceptive mandate case

Justice Department Christopher E Zimmer/Shutterstock

An Obama-era Justice Department official with a history of pro-abortion and pro-transgender statements was confirmed to a top position at the agency on Wednesday.

The Senate voted 51-49 to confirm Vanita Gupta, former president of the Leadership Conference on Civil and Human Rights and former civil rights head at the Justice Department, as associate attorney general on Wednesday afternoon. Gupta, a daughter of Indian immigrants, will be the first woman of color to hold the position.

From 2014 to 2017, Gupta served as head of the civil rights division at the Justice Department. In her new role, she will be expected to address race relations and police reform at the Justice Department, but in overseeing the civil rights division she could also be in a position to advance transgender ideology and abortion.

At her March 9 confirmation hearing before members of the Senate Judiciary Committee, Gupta would not directly answer what restriction on abortion, if any, she supported. Sen. Ted Cruz (R-Texas) posed the question to her.

When Cruz followed up by asking Gupta if she believed the government could ban partial-birth abortion, she replied that “my duty, if confirmed, will be to federal laws and the Constitution.”

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“Roe versus Wade is established precedent and has been reaffirmed numerous times by the courts,” she said.

Gupta was also grilled on religious freedom. Cruz asked Gupta if she supported a provision of the Equality Act which supersedes existing religious freedom protections under the Religious Freedom Restoration Act (RFRA).

The provision would bar people from making religious freedom claims, when they are sued for discriminating against others based on their sexual orientation or gender identity. The Equality Act passed the House in March,

“Religious liberty is incredibly important to me. I am a person of faith,” Gupta said. Later, she said that “I support RFRA. I have enforced provisions of RFRA. And the Justice Department must enforce the law. The Justice Department enforces religious liberty and protects it. and it also enforces our nation’s anti-discrimination laws.”

However, in past statements Gupta has argued that religious freedom should, at times, give way to claims of LGBT or sex discrimination.

In the case of the Little Sisters of the Poor against the HHS contraceptive mandate, Gupta argued in 2020 that the sisters and others should not have a religious exemption to the mandate; the rule required health plans to cover contraceptives, sterilizations, and abortifacients.

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“Religious freedom does not create a license to discriminate,” she said, arguing that women seeking contraceptives would be discriminated against.

“This troubling decision allows employers and universities to refuse to provide contraceptive coverage based on religious or moral opposition,” she said of the Catholic sisters being exempt from the mandate.

In 2017, Gupta argued that Christian business owners should be forced to serve events they are morally opposed to.

Colorado Christian baker Jack Phillips was at the Supreme Court after he was sued for not baking a cake for a same-sex wedding ceremony. Phillips said that he could not in conscience serve a same-sex wedding ceremony, and said that he should not be forced to do so against his religious beliefs.

Gupta compared the case to segregation-era cases of racial discrimination where business owners flatly denied all service to people based on their race. She argued that religious freedom at times must yield to claims of discrimination.

“On that principle, there ought to be no question that Colorado’s law allowing Charlie Craig and David Mullins to buy a wedding cake from any bakery they choose – notwithstanding that they are gay – should trump claims by a bakery that providing the cake would violate the owner’s religious beliefs,” Gupta wrote in a SCOTUSblog symposium on the case Masterpiece Cakeshop v. Colorado Civil Rights Commission.

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“At times, the free exercise of religion yields to other foundational values, including freedom from harm and from discrimination,” she wrote.

While previously at the Justice Department, Gupta also praised the agency’s work on behalf of people identifying as transgender.

In a May 9, 2016 press conference announcing a Justice Department complaint against North Carolina’s bathroom bill, Gupta reiterated the agency’s support for people identifying as transgender.

”Here are the facts.  Transgender men are men – they live, work and study as men.  Transgender women are women – they live, work and study as women,” she said.

Gupta has also supported abortion in previous statements. After the Supreme Court struck down Louisiana’s abortion regulations last summer, she called for passage of federal legislation that would overturn many state limits on abortion.

“Despite this victory, depending on where they live, too many people in America face insurmountable obstacles to obtaining an abortion.  Congress must pass the Women’s Health Protection Act to ensure reproductive freedom is available to all,” Gupta stated. The proposed legislation would subject state abortion laws to increased legal scrutiny.

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