by Travis Weber, J.D., LL.M.
December 18, 2014
Yesterday, the DC Council passed a bill called the “Reproductive Health Non-Discrimination Act of 2014,” which could force employers in the District of Columbia (including the Family Research Council) to cover abortions.
The actual language of the bill would prevent employers from “discriminat[ing] against” an individual with respect to the “compensation, terms, conditions, or privileges of employment” because of an individual’s “reproductive health decisions.” The definition of “reproductive health decisions” includes but is not limited to “a decision by an employee … related to the use or intended use of … contraception or fertility control or the planned or intended initiation or termination of a pregnancy.” In plain terms, no employer would be able to say they don’t want to cover an abortion.
There is no exemption in the bill for any employer who might object to such coverage. This would have drastic consequences for a number of employers and organizations in the District who not only might object to such coverage on conscience grounds, but whose actual purpose for existing is to stop abortion because they believe it is a moral evil. This is the essence of a Freedom of Association violation – disrupting the very purpose of autonomous, private groups through legislative bulldozing tactics, thus rendering the groups’ existence meaningless.
Aside from this injustice, there are a number of legal problems with the bill. As pointed out by Alliance Defending Freedom, the bill would violate the Religious Freedom Restoration Act, the Weldon Amendment, and the First Amendment protections of Free Speech, Free Exercise, and Freedom of Association.
Even the mayor’s office recognized the legal problems with the bill. Yet, more interested in ramming its policies down every District employer’s throat, the DC Council went ahead and passed the bill in defiance of the mayor’s concerns. One of the mayor’s concerns was a potential Equal Protection violation because the bill only addressed protections for women. In response, the Council reportedly added protections for men as well. That the Council would make this correction, and leave other groups who expressed religious and associational concerns hanging out to dry, only confirms the devious nature of the DC Council.
If following one’s conscience is to retain any meaning at all for those living and working in the District, the mayor absolutely must veto this bill!