Two bills have lingered between the Democratic House and Republican Senate for the last few years. Now that Joe Biden is president, and both houses are controlled by Democrats, these two bills are likely to be signed into law: the Equality Act and the Do No Harm Act.
The Equality Act would amend the Civil Rights Act to forbid discrimination on the basis of sexual orientation and gender identity, but it would also fulfill the abortion industry’s long-fought desire to establish abortion as “health care” officially and legally by outlawing “pregnancy discrimination.” It requires that access to “treatment” for pregnancy must not be any different from access to any other kind of health care treatment for any other “physical condition.” But this is all code language for implementation of a vigorous national policy of abortion on demand for any or no reason.
By making abortion health care and declaring that no person shall be discriminated against in access to such care, the Equality Act would make opposing abortion access morally equivalent to opposing dialysis, chemotherapy, stitching a wound, or setting a fractured arm; if there is no morally serious argument to be made against setting fractures, neither can there be a morally serious argument against providing an abortion. On the anniversary of Roe v. Wade, President Biden called abortion “health care” and repeated that he intends to make Roe v. Wade the law of the land, removing any doubt about his commitment to the Equality Act.
The Equality Act would also outlaw certain kinds of psychological or psychiatric treatment, including any treatment for gender dysphoria that does not conform chapter and verse to extreme gender-identity ideology. Gender “confirmation” hormone therapy and mutilating surgery will also be protected “health care,” under the same analysis as abortion above. And the Act would force schools and athletic conferences to allow biological males to compete against biological females in athletic competitions. On the first day of his presidency, Biden issued an executive order instructing all applicable administrative agencies to enforce just such an agenda.
While even the Obama-era Affordable Care Act contained conscience or refusal provisions for religious believers (albeit largely inadequate ones), the Equality Act expressly denies such exceptions. It explicitly provides that the “Religious Freedom Restoration Act shall not provide a claim concerning, or a defense to a claim under” the Act, nor “provide a basis for challenging the application or enforcement” of the Act.
Whatever crumb of religious liberty that might be left after enactment of the Equality Act would likely be swept up by the Do No Harm Act, a more comprehensive bill that would effectively render RFRA null and void. As a reminder, RFRA was signed into law by President Clinton in 1993 as a legislative correction of the Supreme Court decision Employment Div. of Oregon v. Smith (the so-called “peyote” case), in which the Court refused to exempt certain religious practices from otherwise generally applicable laws that prohibited them. It is under the federal RFRA and similar state RFRA laws that bakers, florists, photographers, and others have sought protection from being forced to participate in, and thus endorse, morally objectionable speech and rituals.
As a senator, Kamala Harris was a chief sponsor and energetic proponent of the Senate’s version of the Do No Harm Act, the purpose of which is essentially to remove the protections that RFRA provides religious believers without actually repealing RFRA. For example, the Act states that RFRA “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.” On its face, this sounds benign or even noble. But the purpose of the language is to force a business to finance abortion, contraceptive, or gender transition surgery for its employees over the business owner’s religious objection. To grant a company an exemption from laws that otherwise mandate such coverage would be to allow it to “impose . . . religious views” on the company’s employees. Thus, the religious views of the business owner (i.e. the “free exercise” of religion) would be abridged by the Do No Harm Act.
Similarly, in an attempt to reverse the effect of the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Act would remove religiously based exemptions from generally applicable law if the exemption “imposes meaningful harm, including dignity harm, on a third party” (emphasis added). The purpose of this provision is to force people like Jack Phillips and other similarly situated business owners to create art that endorses—or even to participate in—same-sex weddings or other events to which they have religious objections, lest they cause “dignity harm” to potential customers. Once again, the religious liberty of the florist, baker, or photographer would be threatened by the Do No Harm Act.
Finally, the Act would proscribe exemptions to generally applicable laws if the exemption would “permit discrimination against . . . persons who do not belong to the religion or adhere to the beliefs of those to whom the exemption is given.” This is the most dubious provision of the Act, because it also seems to fly directly in the face of the unanimous 2012 Supreme Court case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which established a “ministerial exception” to some employment discrimination laws for religious employers. The essence of Hosanna-Tabor is that the government is not competent or authorized to determine whom a church, synagogue, mosque, or affiliated school may hire as ministers. The Do No Harm Act could reasonably be read to require a Catholic Church to ordain a woman as a priest, for example, under laws that prohibit discrimination on the basis of sex. Or it could be used to prevent a Catholic school from firing a teacher who publicly advocates moral positions, or engages in activities, that are contrary to the teaching of the Church.
If these acts are passed and signed, which seems highly likely, President Biden’s enforcement of these and other religiously discriminatory laws will be vigorously effected by his vice president, Kamala Harris, and his Secretary of Health and Human Services, Xavier Becerra. As a U.S. senator, Harris championed both acts. Becerra’s record as A.G. of California prosecuting persons and groups on the basis of their religious opinions is well established.
In the Biden Administration, HHS will be less about public health and more about the imposition of divisive secular social policy. The Equality Act and the Do No Harm Act will be the cudgels by which the administration executes these policies.
Kenneth Craycraft is a licensed attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology.
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