Two House Democrats have introduced legislation that would amend the 1993 Religious Freedom Restoration Act (RFRA) to ensure religious exemptions cannot be applied to any health care service, including abortion and gender transition treatments.
Reps. Joe Kennedy III (D-MA) and Bobby Scott (D-VA) introduced the Do No Harm Act, which states:
The Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption from generally applicable law that imposes the religious views, habits, or practices of one party upon another…
The Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption that permits discrimination against other persons, including persons who do not belong to the religion or adhere to the other beliefs of those to whom the exemption is given…the misapplication of RFRA has been used to deny health care coverage for employees, claim exemptions to civil rights law, and complicate justice in child labor and abuse cases.
Kennedy says the 1993 RFRA is currently being misused. A press release states the legislation “comes in response to continued efforts across the country to cite religious belief as grounds to undermine Civil Rights Act protections, limit access to healthcare, and refuse service to minority populations.”
“Specifically, the Do No Harm Act would limit the use of RFRA in cases involving discrimination, child labor and abuse, wages and collective bargaining, access to health care, public accommodations, and social services provided through government contract,” the press release continues, specifying that entities that operate with a government contract would be required to submit to the legislation’s mandate.
The right of Americans to freely and fully express our faith is sacred in this country. But in order to guarantee that liberty for every citizen, our system must ensure that my religious freedom does not infringe on yours or do you harm. While not its original intent, the Religious Freedom Restoration Act has become a vehicle for those seeking to impose their beliefs on others or claim that the tenants of their faith justify discrimination. The Do No Harm Act will restore the balance between our right to religious freedom and our promise of equal protection under law.
Scott also said the 1993 RFRA has been “misconstrued as allowing the sincerely-held religious beliefs of one person to trump the civil rights of others.”
“[W]e cannot allow so-called ‘religious freedom,’ ‘religious liberty’ or ‘faith-based initiatives’ to invalidate the very laws designed to correct the generations of injustices inflicted on minorities,” he added. “The Do No Harm Act restores the original intent of RFRA.”
The leftwing Center for American Progress (CAP) backs the legislation.
“[R]ecent lawsuits and federal court decisions, such as the Supreme Court’s 2014 Hobby Lobby v. Burwell decision, have created an overly broad interpretation of the law and have allowed RFRA to be used in ways that actually restrict religious liberty by imposing beliefs on others and occasioning meaningful harm to third parties,” said Carmel Martin, executive vice president of policy at CAP. “Congress should act to ensure that RFRA is not inappropriately used to violate the rights of others.”
Louise Melling, deputy legal director of the American Civil Liberties Union (ACLU), said the 1993 RFRA requires “much needed limitations.”
“Religious freedom gives us the right to our beliefs, but not to harm others,” she said. “The Do No Harm Act would place much needed limitations on RFRA, so that it can be used as a shield for religious exercise but no longer as a sword. With the Do No Harm Act, RFRA could no longer be invoked to justify discrimination, denial of health care, or other harms. We at the ACLU are proud to stand in support of this legislation.”
In an op-ed at the Washington Post in June of 2015, Melling wrote the ACLU will no longer defend the 1993 RFRA.
The ACLU — whose stated mission was once “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States” — says that while the organization supported the RFRA when it was passed, “we can no longer support the law in its current form” because “it is now often used as a sword to discriminate against women, gay and transgender people and others.”
According to Melling, who condemned use of RFRA by the Supreme Court in its Hobby Lobby decision last year:
They invoke the RFRA to argue not only that they should not have to provide insurance coverage for contraceptives, but also that they should not even have to notify the government that they refuse to do so because, they maintain, notification would trigger the government to intervene to ensure coverage.
In the states, legislators, governors and businesses are citing state religious freedom restoration acts to justify all manner of discrimination against gay men and lesbians, including at commercial establishments. At the federal level, the Justice Department — under both the Bush and Obama administrations — has said that the government would violate the RFRA if it were to require that organizations not discriminate in hiring on religious grounds in order to receive government funding.
Melling criticized the U.S. Conference of Catholic Bishops, who say RFRA supports them in their refusal to provide abortions and contraceptives – which are against their faith’s doctrine – to illegal immigrant minors in their care.
She also condemned Christian wedding cake bakers for inviting LGBT activists asking for same-sex wedding cakes to purchase them elsewhere.
“People turned away by an inn or bakery suffer the harm of being told that their kind isn’t welcome,” complained Melling. “Religious liberty doesn’t mean the right to discriminate or to impose one’s views on others.”
However, Jeff Bailey, a Baptist pastor in Attleboro, Massachusetts, said Kennedy’s and Scott’s legislation would allow the government to decide which religious freedoms are legitimate, rather than the people, reports the Sun Chronicle.
“This bill would limit the RFRA to areas which agree with the secular progressive agenda,” Bailey said. “Simply stated, this means that religious liberty is what the government says it is. There is no liberty in that.”
— NARAL (@NARAL) May 20, 2016
The legislation also has the support of Catholics for Choice; Center for Reproductive Rights; GLBTQ Legal Advocates & Defenders; Gay, Lesbian and Straight Education Network (GLSEN); Guttmacher Institute; Human Rights Campaign; National Black Women’s Reproductive Justice Agenda; Lambda Legal; NAACP; NARAL; National Abortion Federation; National Center for Lesbian Rights; National Center for Transgender Equality; National Latina Institute for Reproductive Health; National LGBTQ Task Force; Planned Parenthood; Sexuality Information and Education Council of the US (SIECUS); and Unitarian Universalist Association.