Today, Congress will take up House Joint Resolution 43 to disapprove of the D.C. Reproductive Health Nondiscrimination Amendment Act. Under the Constitution, the Congress has authority to govern the District. And under the Home Rule Act, the federal government retains the authority to effectively veto any act of the DC Council. While Congress has historically shown deference to the District, rarely disapproving its laws, the Reproductive Health Nondiscrimination Amendment Act betrays Congress’s patience and challenges Congress’s authority over the District. Congress should intervene and disapprove of this egregiously illegal law.
Pro-life and religious groups in D.C. aren’t an accidental victim of RHNDA. They are its very target. Backed by abortion-advocates like Planned Parenthood and NARAL, RHNDA would prohibit “discrimination” in the “terms and conditions of employment” on the basis of any “reproductive health decision.” Yet, in 10 months they have never identified a single example of a D.C. for-profit, secular company discriminating against an individual in a way that RHNDA would apply. Rather, from the very first hearing, it was clear that the proponents of RHNDA—from its sponsor, Rep. Grosso, to the activist groups like Catholics for Choice—testifying in favor of the law, were focused on religious and pro-life ministries and organizations. They intended to require religious organizations like the Archdiocese of Washington, D.C., and all other pro-life nonprofits in the District to provide insurance coverage of not only all contraceptives but even elective abortions to their employees.
Rep. Grosso and the witnesses supporting RHNDA emphasized their intent to require insurance coverage of all reproductive health decisions by religious and pro-life employers. In his introductory statement, Rep. Grosso described the bill’s intent: “I believe that religions don’t have to provide contraceptive coverage, which is too bad, but they don’t have to, whereas nonprofits and other private entities do have to give this” (at 31:43). But unlike the HHS contraceptive mandate that has resulted in over 100 lawsuits around the country and the Supreme Court’s decision last summer that the mandate violates the Religious Freedom Restoration Act, RHNDA goes much further. It requires not “just” contraceptive coverage, but elective abortion coverage, and offers no accommodations for religious or pro-life employers.
While the District Council now claims to have abandoned this primary purpose of RHNDA, its “temporary amendment” will lapse in 225 days. After that point, RHNDA could compel, as originally intended, pro-life and religious employers to cover all reproductive health decisions, including elective abortion, in their insurance plans or to cancel insurance coverage for their employees altogether. If the District Council was serious about avoiding this result, it could have permanently amended the bill at any time in the past 10 months to address this problem. Despite repeated warnings, it has not done so.
RHNDA will also compel religious and pro-life employers to hire those who do not share the organization’s commitment to the sanctity of life and live out that commitment in both word and deed. Requiring a pro-life ministry to hire persons who reject its very purpose serves no rational, let alone compelling, government interest. Just as a Democratic congressman should not be forced to hire a Republican chief of staff, pro-life organizations must be able to draw their employees from those committed to their cause. RHNDA simply serves to launch an unnecessary and spiteful culture war against pro-life organizations in our nation’s capital.
This is a battle that the District (and thus taxpayers) will lose. The First Amendment and the Religious Freedom Restoration Act forbid the burdens on religious exercise and the right of association that are the very target of RHNDA. Former Mayor Gray expressed these same concerns to the Council in December, writing before their final vote:
“My staff shared with the Committee on the Judiciary a detailed review of the bill by OAG that deemed the legislation legally insufficient.… According to OAG, the bill raises serious concerns under the Constitution and under the Religious Freedom Restoration Act of 1993 (RFRA). Religious organizations, religiously affiliated organizations, religiously-driven for-profit entities, and political organizations may have strong First Amendment and RFRA grounds for challenging the law’s applicability to them.
Congress need not sit idly by while the District expends taxpayer dollars to serve the interests of abortionists and attack their ideological opponents in the D.C. pro-life community.
Casey Mattox is Senior Counsel for Alliance Defending Freedom. Follow him on twitter at @CaseyMattoxADF