Sham Legislation: The Harms of the Conscience Protection Act and First Amendment Defense Act
It’s an election year in case you missed it. Congressional grandstanding and theatrical spectacle are center stage even as the time for Congress to do its job—passing important legislation and working to solve the nation’s myriad challenges—rapidly dwindles. Rather than tackle the hard issues, however, House Republicans are content to work on unnecessary and harmful legislation that targets their favorite prey: women and LGBTQ folks. Those are always sure-fire winners with the base. This last week before summer break, these two groups were once again in the political crosshairs.
The Conscience Protection Act is a prime example. This week, the House passed it 245 to 182. Fortunately, it is not likely go anywhere. On the surface, this legislation sounds like a good thing: Who could be against individual conscience or safeguarding it? But in reality, this is a terrible bill that undermines healthcare and religious freedom. The real question is: Whose conscience would this legislation protect? Who stands to gain and who would lose?
This bill is not designed to protect the consciences of patients who want or need an abortion and believe this is their moral choice. And it certainly is not protecting the consciences of the doctors who want to provide the best quality care to their patients. Healthcare professionals working at a Catholic hospital (all of which adhere to the bishops’ Ethical and Religious Directives) can be prohibited, not only from providing an abortion, but even referring the woman to someone else who will. Real conscience protections balance the integrity of the individual healthcare provider and the patient’s needs. This legislation is antithetical to this careful balance, and instead seeks to privilege the conscience of some while dismissing others.
When did conscience become—not the ability to hold your own beliefs and adhere to them, but the right to impose beliefs on someone else? It is a sad testament to the state of religious freedom in this country that a bill with a distorted sense of religious liberty passed the House along mostly party lines.
Simply put, the misleading Conscience Protection Act justifies discrimination against women seeking abortion care. It would accomplish this by threatening to revoke federal funds from state and local governments that don’t permit healthcare entities to refuse to provide, pay for, cover or refer for abortions. The government would lose its leverage to tell institutions not to discriminate when it came to women and abortion. Because the bill creates a private right of action, nearly anyone supposedly aggrieved need simply sue in federal court to attempt to resolve their issue. This leaves municipalities and localities vulnerable to gratuitous lawsuits targeted to undermine access.
To add insult to injury, the day before, the Government Reform Committee used its limited time before extended break to hold a hearing on the First Amendment Defense Act (FADA). Lewis Carroll and George Orwell would be stupefied by the topsy-turviness of this legislation offered in the defense of religious freedom—not to mention the Founding Fathers.
Aghast at the Supreme Court’s decision last year in Obergefell v. Hodges, which allowed same-sex couples to legally marry, opponents are seeking to carve out oases of special privilege where civil rights laws do not need to apply to them. Specifically, FADA would empower federal employees, federal contractors and grantees, nonprofit organizations and many for-profit businesses receiving taxpayer dollars to use their religious views on marriage and sexuality as a basis to refuse to serve legally married same-sex couples and their families. Single mothers could also be subject to harsh refusals were the law to be enacted.
Like the Conscience Protection Act, FADA is a sham, a thinly veiled mechanism to enable organizations to discriminate against those with whom they disagree. As Columbia Law Professor Katherine Franke testified, “Even worse, FADA’s language may conscript the federal government as a partner in those very acts of discrimination.” This type of legislation, which amounts to state sanctioned, federally funded discrimination, has no place in society. In fact, it undermines the First Amendment by privileging the beliefs of a small subsection of a particular religious group and encoding them into law.
Let’s be clear: The First Amendment needs no legislative defense. It provides ample religious freedom protections that painstakingly balance the rights and conscience of various actors, unlike this misnamed bill.
It was another lackluster year of the Fortnight for Freedom, in which the bishops unsuccessfully tried to persuade Catholics and others to support their distorted version of religious liberty. This, combined with their recent loss in Whole Woman’s Health v. Hellerstedt, may have spurred the Catholic hierarchy to implore the conservatives in Congress to at least try to rack up a win before the party conventions and summer break. Sadly, while the Conscience Protection Act passed the House and the First Amendment Act was heard in committee, far too many people stand to lose from these perversions of religious liberty. Women and LGBTQ individuals are at the top of that list of those who will lose as a consequence of such frauds. We need legislation that truly protects people’s conscience and civil rights. Or maybe we need new legislators.
This letter was originally published by Hamilton and Griffin on Rights.