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WASHINGTON -- HHS secretary nominee Xavier Becerra's second Senate confirmation hearing was much more divisive than the first, with Republicans on the Senate Finance Committee questioning him sharply on his record as California's attorney general and his views on abortion and reproductive rights.

Contraceptive Coverage Controversy

The sharpest exchange came toward the end of Wednesday's 2½-hour hearing, when Sen. Ben Sasse (R-Neb.) asked Becerra about a discussion with another senator around a case Becerra prosecuted dealing with employers in California and other states -- including a Catholic order known as Little Sisters of the Poor -- who refused to provide birth control coverage for their employees, or to allow them to obtain such coverage through the federal government. Becerra, who is currently California's attorney general, sued the Trump administration in the case, alleging that it was not properly enforcing federal contraceptive coverage laws.

The other senator, John Thune, (R-S.D.), commented that Becerra has "spent an inordinate amount of time and effort suing pro-life organizations, like Little Sisters of the Poor, or trying to ease restrictions and expand abortion." Becerra responded that "I have never sued any nuns -- I have taken on the federal government, but I have never sued any affiliation of nuns. My actions have always been directed at federal agencies because they have been trying to do things that are contrary to the law in California and it's my job to defend the rights of my state and uphold the law."

Sasse jumped on that comment, calling Becerra's claim that he had never sued the nuns "a pretty interesting way of re-framing your bullying. You actually sued the federal government who had given an exemption to the nuns. Can you explain to us what the Little Sisters of the Poor were doing wrong?"

"We never alleged that the Little Sisters of the Poor did anything wrong," Becerra replied. "Our problem was that the federal government was not abiding by the law as we saw it, so what we did was we took action against the federal government so California could administer its programs to make sure that the Affordable Care Act continued to work." Sasse called Becerra's response "a complete nonsense answer."

Other Abortion Questions

Sasse and Thune weren't the only ones who brought up the abortion issue. "Could you name one abortion restriction you might support?" asked Sen. Steve Daines (R-Mont.). Becerra wouldn't answer directly. "I have tried to make sure that I am abiding by the law, because whether it's a particular restriction of whether it's the whole idea of abortion, whether we agree or not, we have to come to some conclusion, and that's where the law gives us a place to go," he said.

Daines tried several more times to pin Becerra down, asking whether he would support a ban on "lethal discrimination" against fetuses diagnosed with Down syndrome, or a ban on sex-selective abortions, or late-term abortions. "You're asking questions which will touch on aspects that I know have different views," Becerra answered. "I will make sure I'm respecting the law on those issues."

Sen. James Lankford (R-Okla.) asked Becerra whether he would keep the Conscience and Religious Freedom division at HHS, which was started by the Trump administration to protect the rights of healthcare providers who have conscientious or religious objections to providing certain services, and whether he'd continue to enforce existing federal conscience laws.

"I believe deeply in religious freedom, and I will make sure that as secretary of HHS ... I will not only respect the laws when it comes to these issues of religious freedom, but I will enforce them as secretary of HHS within my department," said Becerra. He did not address the question about the Conscience and Religious Freedom division.

Republicans also had other concerns. Sen. Chuck Grassley (R-Iowa) asked, "Do you know if the Biden administration would be interested in enacting a bipartisan prescription drug pricing reform bill?" Becerra replied that "there's no doubt President Biden wants to see us lower the price of prescription medicine, and he and his team -- and if I'm fortunate to be part of that team -- will be working with you in a bipartisan fashion to reach a solution."

Sen. Todd Young (R-Ind.) was concerned about the problems that have occurred with the federal government rollout of COVID-19 vaccines. "Would you allow states like Indiana ... to opt out of these federal programs until a time where there is an adequate vaccine supply available?" he asked Becerra, who replied that he would "absolutely" consider it. "The moment I am in that seat -- we'll go to your office and we'll talk about this."

Support for Single-Payer

Sen. John Barrasso, MD (R-Wyo.), asked what Becerra would do about recent reports that the administration of New York Gov. Andrew Cuomo (D) had underreported the number of deaths occurring in nursing homes in that state. "It's important that all of us do the work to make sure data reflects the facts, and that the data is used in appropriate ways so we can make decisions on how to move forward," Becerra responded.

When Barrasso asked whether Becerra would ask the Biden administration to investigate what happened there, Becerra demurred, saying, "I don't know the facts in that particular case and it would be difficult for me to comment."

Sen. Mike Crapo (R-Idaho), the committee's ranking member, asked about Becerra's support for single-payer health insurance, which Crapo said "seems hostile to our system ... What assurances can you give Americans who have private insurance that they won't lose coverage to a Medicare for All approach?"

"We will both agree that the most important thing is to give everyone in this country coverage -- good coverage," Becerra said. However, he added, "I'm here at pleasure of the president of the United States, and he's made it very clear where he is; he wants to build on the Affordable Care Act. That would be my mission ... to build on the Affordable Care Act."

Sen. Bill Cassidy, MD (R-La.), renewed his criticism from Tuesday's hearing that Becerra was not qualified for the job because he is not a physician. "As I said yesterday, I'm a physician; should I be the attorney general of the United States? Obviously the answer's no," said Cassidy. (In 2018, however, Cassidy Alex Azar, an attorney and drug company executive, and not an MD, as HHS secretary.)

Democrats seemed to have expected Cassidy's comment, because Sen. Debbie Stabenow (D-Mich.), who spoke before Cassidy, said, "I know some have said they're concerned you're not a doctor. Well, our former HHS secretary was a drug company executive, and you've been on the other side as an attorney general and congressman fighting high drug prices, and that's the side I'm glad to have an HHS secretary on."

Healthcare Fraud Concerns

Democrats had other issues of concern. Sen. Maria Cantwell (D-Wash.) asked Becerra whether he would help her look into the sale of fraudulent N95 masks in the state of Washington. "I personally think we need a task force between the FDA and [Customs and Border Patrol] and the Department of Justice and others to look at this issue," she said. "We have healthcare workers and we're asking them to go into these situations, and then they're finding out big, vast amounts of supply of these masks don't meet the standards. So we need to be aggressive here with the FDA on a task force to make sure we're looking at this."

"I couldn't agree with you more," said Becerra. "I think HHS would be more than willing to work" on the issue. He cautioned that HHS's statutory role is limited to "certifying what it takes to have a mask that works," but promised to work with other agencies on the issue.

Sen. Elizabeth Warren (D-Mass.), who said she supported Becerra's nomination "all the way," asked Becerra whether he would commit to having his agency collect race and ethnicity data for COVID-19 testing and vaccination; Becerra agreed to do that.

The next step is for the Finance Committee to vote on whether to send Becerra's nomination to the full Senate for a vote; it was unclear when that will happen.

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