Democrats’ ‘Contraception’ Bill Overrides Religious-Freedom Law and Protects Abortion
The House bill would also flood America’s largest abortion provider with tax dollars.
House Democrats — eager to paint Republicans as opponents of a legal right to contraception — are rushing toward a vote on a bill this week that would establish a nationwide right to receive and distribute any drug that may act as a “contraceptive,” superseding the Religious Freedom Restoration Act.
The Religious Freedom Restoration Act (RFRA) is a 1993 law that establishes a balancing test for courts to use when deciding religious-liberty cases involving federal laws and regulations. RFRA was overwhelmingly popular when it passed the House on a voice vote (where it was sponsored by then-congressman Chuck Schumer) and passed the Senate on a 97–3 vote in 1993. But since then, Democrats have turned against the law, in the wake of courts’ ruling that RFRA protects conscientious objectors such as the Little Sisters of the Poor, an order of nuns who care for the elderly poor, from having to violate their religious beliefs in order to carry out Obamacare’s 2012 contraceptive mandate.
When Democrats held a vote earlier this year for the first time in Senate history on legislation that would “codify Roe v. Wade,” two pro-Roe Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, opposed the legislation because it went beyond Roe in several important respects, including its provision superseding RFRA. A joint press release sent out by Collins and Murkowski noted, “Congress has never before adopted legislation that contains an exemption to this religious liberty law.”
By including the same poison-pill language about RFRA in their “Right to Contraception Act,” Democrats appear to be taking a page from their 2012 playbook: picking a fight over religious liberty in order to portray Republicans as opposing the legal right to contraception.
The Democrats’ “Right to Contraception Act” explicitly condemns (in one of its official findings) state conscience laws that protect health-care providers who refuse to offer contraception (a term that the bill says includes sterilization procedures):
Providers’ refusals to offer contraceptives and information related to contraception based on their own personal beliefs impede patients from obtaining their preferred method, with laws in 12 States as of the date of introduction of this Act specifically.
Conscience and religious-liberty concerns aren’t the only problem with the Democrats’ bill. As Representative Cathy McMorris Rodgers (R., Wash.), ranking member of the Energy and Commerce Committee, pointed out on Monday, the bill was introduced last Friday and bypassed the usual committee process where several troubling aspects of the bill could have been thoroughly debated.
For example, the bill “undermines laws that protect minors,” McMorris Rodgers argued, which “means that under this extreme agenda, a Planned Parenthood can use taxpayer dollars to sterilize a 13-year-old without her parents’ knowledge.” The text of the bill states that “a person” — with no minimum age listed — “has a statutory right under this Act to obtain contraceptives and to engage in contraception, and a health-care provider has a corresponding right to provide contraceptives, contraception, and information related to contraception.” The bill also prohibits any state or federal law or regulation that “expressly, effectively, implicitly, or as implemented singles out the provision of contraceptives” and “impedes access to contraceptives, contraception, or contraception-related information.”
That provision, which also applies to “facilities” that distribute contraception, would prohibit states and the federal government from cutting off taxpayer subsidies to Planned Parenthood. While pro-life Republicans have repeatedly voted for billions of dollars in federal funding of contraception — both in the Title X program and Medicaid — they object to providing funding that subsidizes Planned Parenthood, an organization that performs hundreds of thousands of abortions each year. McMorris Rodgers pointed out that the Democratic contraceptive bill would “send more taxpayer dollars to Planned Parenthood, freeing up more funds for them to provide abortions and end the lives of the most helpless among us.”
What’s more, the so-called “contraception” bill could create a federal right to Mifepristone, the abortion drug used to kill an unborn baby during the first ten weeks of pregnancy. The common abortion pill has both “contraceptive and non-contraceptive uses,” and the Democrats’ contraception bill includes language that appears to create a federal right to receive and distribute it. In a letter to Congress, Marjorie Dannenfelser, president of Susan B. Anthony List Pro-Life America, writes:
Because the definition of contraceptives in this bill is overbroad, it could mandate access to abortion drugs. H.R. 8373 states that contraceptives include drugs, devices, or biological products intended for contraception, “whether specifically intended to prevent pregnancy or for other health needs.” This could include noncontroversial applications of the drug but could also include the use of the drug to induce abortion. What follows is that H.R. 8373 would then require the right to obtain a chemical abortion, the right to provide a chemical abortion, and would overturn any law that regulates chemical abortion by singling it out.
The legal right to contraception — or even taxpayer-funded contraception — is not in doubt. There’s no question about that. Not a single state in the country has tried to ban contraception. Back when Mike Pence was a congressman, he introduced a bill to cut off contraceptive funding to Planned Parenthood, but that bill didn’t reduce by even one cent the overall funding for the contraceptive Title X program.
The supposed urgency of the Democrats’
bill is Justice Thomas’s concurrence in the Dobbs decision in which he alone called for the Supreme Court to revisit Obergefell and Griswold, decisions that respectively established a constitutional right to same-sex marriage and to contraception. But there’s no reason to think that a case challenging Griswold would even make it to the Supreme Court. For Griswold to be challenged, a state would first need to pass a law banning contraception. That’s not going to happen. Furthermore, regarding the Supreme Court decision extending a right to contraception to unmarried people, Justice Alito has flatly said, “I do agree with the result.”
Could there be states that try to ban the drug ella, which may act as an abortifacient sometimes and as a contraceptive at other times (and is classified by the FDA as an “emergency contraceptive”)? That is at least theoretically possible, but that would be a debate about potentially killing human embryos in the earliest days after conception, not contraception, which prevents the conception of a new human being. The Democrats’ contraception bill, of course, goes far beyond that issue by superseding the Religious Freedom Restoration Act, funding Planned Parenthood, and apparently creating a federal right to the abortion drug used during the first ten weeks of pregnancy.
As for contraception by itself, pro-life Republicans in the House say they are fine with federal funding of it — so long as it is not used to subsidize abortion clinics and abortion doctors — and many Republicans even want to make it available over the counter. “I support their access to contraception. If Democrats came to me and asked to work together on a bill, I would have been happy to roll up my sleeves and work with them,” McMorris Rodgers said in her remarks earlier this week. “Going back to more than five years, Republicans on both sides of the Capitol have introduced the ‘Allowing Greater Access to Safe and Effective Contraception Act,’ which would help make birth control available over-the-counter.”
Update: This first paragraph of this article has been updated to clarify that the right to “contraceptives” established by this bill goes beyond those approved by the FDA.