House Panel Debates Religious Freedom in Healthcare
1993 law passed with bipartisan support, but Dems now say Republicans have "twisted" it to fit their agenda
WASHINGTON -- House Democrats argued that a law meant to protect Americans' religious liberties has been exploited in ways that infringe on others' civil rights, particularly those of women and the LGBTQ community.
The "Religious Freedom Restoration Act (RFRA)" which has been law for more than 25 years, is being "twisted" in ways that its authors never intended, said Rep. Bobby Scott (D-Va.) chair of the House Committee on Education and Labor, during a hearing on Tuesday.
The law was a reaction to the Supreme Court's decision in Employment Division v. Smith, a case in which two Native American men lost their jobs after consuming peyote, a hallucinogen, as part of a religious ritual.
To counter the perceived misapplication of the law, Scott and Rep. Joe Kennedy III (D-Mass.) re-introduced the "Do No Harm Act," which they view as a means of ensuring that RFRA serves its intended purpose.
The bill 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."
"Over the years, RFRA has morphed from a shield of protection to a sword of infringement," said Kennedy, a witness at the hearing.
Since then, the Trump administration has "laid the foundation for discrimination in the name of religious liberties," Kennedy said.
The administration went even further than the Hobby Lobby decision in its November rule, which provided exemptions for the ACA's contraceptive coverage requirements for small businesses and nonprofit organizations -- even those who objected to the services for non-religious moral reasons.
More recently, the administration approved a request from South Carolina to waive nondiscrimination requirements, thus allowing Miracle Hill Ministries, the largest foster care agency in the state, to reject applications from families who don't follow its particular religious beliefs.
Miracle Hill then denied one woman seeking to take in a child because she is Catholic and not an evangelical Protestant; the agency also rejected an application from a lesbian couple on account of their sexual orientation. Both have now sued.
Sharp said that there are multiple foster care agencies in the state and that potential clients have other options to serve their needs. He said that laws like RFRA promote and allow for a diversity of businesses to thrive while upholding their values.
Moreover, Sharp and the House Republicans argued that the Democrats' proposed solution, the "Do No Harm" bill, would torpedo RFRA and declare "open season" on those wishing to practice their religion.
The committee's ranking member, Virginia Foxx (R-N.C.), agreed.
"It is unacceptable that congressional Democrats, starting in earnest during the last administration, have consistently ignored how clear the First Amendment is in affirming religious practices as a fundamental human right," she said.
"RFRA stands as our nation's primary religious liberty statute," Foxx said, and House Republicans will fight any efforts to weaken the law, she added.
One of the central questions of the hearing was the discussion around whether providers should be required to provide abortions.
In May, the Department of Health and Human Services released its final "Conscience Clause" rule, which is intended to strengthen the rights of healthcare providers who are opposed to performing certain procedures "on account of religious or moral convictions."
The rule states that workers cannot be required to participate in abortion, sterilization, or assisted suicide procedures.
Rachel Laser, JD, president & CEO of the Americans United for Separation of Church and State, said the situation was "complicated," and Shirley Wilcher, JD, executive director of the American Association for Access, Equity, and Diversity, a second witness, agreed.
The two remaining witnesses, Sharp and Rev. Jimmie Hawkins, director of the Presbyterian Office of Public Witness, said individuals should not be forced to complete a procedure that isn't in keeping with their beliefs.
Rep. Phil Roe, MD (R-Tenn.), an obstetrician-gynecologist who asked essentially the same question of the panel earlier in the hearing, said, "This is not about forcing religious beliefs on anyone; this is about not forcing people of faith to abandon their beliefs."
But Rep. Kim Schrier, MD (D-Wash.), agreed with Laser and Wilcher that the question is more "complicated" than it looks at first blush.
In 45 communities across the country the only hospital may be Catholic, she said.
If a woman has an ectopic pregnancy -- in such instances the fetus is nonviable -- the standard treatment is a chemical abortion followed by removal of the embryo or fetus, she said.
"[T]hat woman could get transported to a hospital where they would not perform that, where instead they would wait for her to bleed out, to risk her life before they would do what is a medically acceptable procedure, which is an abortion," Schrier said.
"So, I want to be really clear that that's not a chuckle-worthy question or answer," referring to the idea of physicians being "forced" to provide abortions.
"This is a very real question that threatens women's lives," she said.
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