The D.C. Council’s nine-month quest to enact two anti-conscience laws appears to be coming to a close. After hearing concerns about violations of the First Amendment and federal law from outgoing Mayor Vincent Gray, the D.C. Attorney General’s office, members of Congress, and dozens of pro-life and religious organizations and schools in the District, the council has apparently rejected those concerns, effectively challenging Congress to intervene.
At issue are two volatile bills the D.C. Council enacted in December: the Reproductive Health Nondiscrimination Amendment Act and the Human Rights Amendment Act.
RHNDA would force every employer in the District, including pro-life and religious nonprofits, to provide elective abortion insurance coverage to all employees. It would also prohibit pro-life organizations from declining to hire a person who has had an abortion and stands by that decision to the detriment of the organization’s mission.
The HRAA would eliminate the longstanding exemption for religious schools from the D.C. Human Rights Act’s prohibition on sexual orientation “discrimination,” forcing them to hire people with – and endorse student groups with – sexual ethics that are contrary to the religious beliefs of those schools.
Over the past nine months, I and others have repeatedly explained to the Council that this quixotic quest is doomed to fail. The same Religious Freedom Restoration Act that doomed the federal HHS Mandate in the U.S. Supreme Court’s Conestoga Wood Specialties and Hobby Lobby decision applies to the District, and this law is even more aggressive in its infringements of religious liberty.
The Council did approve in the last few days a “Reproductive Health Non-Discrimination Clarification Temporary Amendment Act” that would repeal the operative nondiscrimination provision of RHNDA and replace it with similar language. It adds a provision that RHNDA “shall not be construed to require an employer to provide insurance coverage related to a reproductive health decision.” But this provision would expire 225 days after taking effect. After that point the prior language of the act, including its abortion insurance mandate, would be reinserted into the bill and become law. If that sounds bizarre to you, you’re paying attention.
Furthermore, the Council took no action to relieve the burdens on pro-life and religious organizations that would be forced to hire people whose actions and advocacy contradict the mission of those organizations. The Council also took no action on the HRAA, which not only affects employment decisions but could additionally force faith-based organizations and schools to recognize student groups with beliefs contrary to the organizations or schools themselves.
The Council appears to have listened to the concerns of D.C. residents, D.C. organizations, and members of Congress only insofar as it was willing to eliminate the abortion mandate temporarily. This permits the bill to become law long enough for its Trojan abortion horse to be deployed. If the Council had any intention of actually eliminating this illegal and unconstitutional mandate in the long term, it could have corrected this at any point in the legislative process or even passed a new permanent law (rather than temporary amendments).
Unfortunately, this appears to be no mere oversight. The very purpose of RHNDA from its origin was to compel insurance coverage of abortion by religious organizations specifically. At the single hearing held on the bill in June 2014, the sponsor and members who spoke and the abortion advocates who testified in support of the bill made clear that insurance coverage of all “reproductive health decisions” was the goal, and that the Archdiocese of Washington, D.C., was in fact one of the primary targets of the law.
The Council has now transmitted the bills to Congress for the review required under the Home Rule Act. Congress is now on the clock and cannot ignore the Council’s willful lack of interest in its own legal authority.
Federal and state taxpayers deserve better. The D.C. Council should serve the District’s residents instead of using them as a testing ground for the most extreme ideas of the radical left. Congress should disapprove these laws and keep the Council accountable.
Casey Mattox is senior counsel with Alliance Defending Freedom. Follow me on Twitter @CaseyMattoxADF.