The Corner

Law & the Courts

The Equality Act Could Mandate Abortion Funding

Speaker Nancy Pelosi (D, Calif.) speaks about the introduction of the Equality Act at the Capitol building in Washington, D.C., March 13, 2019. (Leah Millis/Reuters)

Aside from its other harmful elements, the Equality Act that passed the House today amends the 1964 Civil Rights Act and contains redefinitions of key terms that will likely be used to expand abortion rights. As some of the bill’s own advocates admit, the Equality Act could be read to mandate taxpayer funding for abortions and to nullify conscience protections for medical providers who object to performing abortion procedures.

The Equality Act defines “sex” to include “pregnancy, childbirth, or a related medical condition,” and, as Representative Chris Smith (R., N.J.) explained on the House floor today, the term “related medical condition” in fact means “abortion.” From Smith’s remarks:

In the case Doe v. C.A.R.S., the Third Circuit stated, “We now hold that the term ‘related medical conditions’ includes an abortion.” Furthermore, the Equal Employment Opportunity Commission (EEOC), which enforces Title VII, interprets abortion to be covered as a “related medical condition.”

The bill also stipulates that those with “a related medical condition shall not receive less favorable treatment than other physical conditions,” a provision that would disallow physicians from refusing to perform an abortion.

The National Partnership for Women & Families, which promotes expansive abortion access, explains that under the Equality Act, women “would also be able to challenge denials of reproductive health care,” and the bill specifically neglects to offer conscience protections for those with objections.

The Equality Act’s provisions related to health-care funding, meanwhile, could be interpreted to undercut existing prohibitions on direct federal funding for abortion. Because the federal government funds health care — and because of the expansive way that the bill defines “establishment” as not limited to physical health-care facilities — it qualifies as a health-care provider, and therefore would itself be subject to the terms of the Equality Act. As a result, the government likely would be required to cover abortions procedures.

Because states receive federal funding to underwrite their own health-care programs, the Equality Act could also require those state governments to cover abortion procedures with their own funds, a change from longstanding practice that has protected state governments from having to do so.

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