- - Friday, November 14, 2014

ANALYSIS/OPINION:

The D.C. Council could vote as early as Tuesday to force pro-life employers within the District to pay for their employees’ elective surgical abortions. If you feel like you’ve seen this movie before, you’re partly right. As with most sequels, though, the D.C. bill is poorly considered and will be far more costly.

Despite the Supreme Court’s decision in the Conestoga Wood Specialties and Hobby Lobby cases, the D.C. Council is considering a mandate that makes its federal counterpart seem respectful of religious liberty by comparison. The egregiously illegal “Reproductive Health Nondiscrimination Amendment Act” is being rushed through without discussion at the urging of abortion advocates. If enacted, the burden of this law will fall not only on religious employers, but also on a new mayor who will have to defend it, and the D.C. taxpayers who will be forced to pick up the tab for this quixotic — and illegal — quest.

Bill 20-790, introduced by D.C. Council member David Grosso, would prohibit “discrimination” by any employer on the basis of a “reproductive health decision.” It specifically includes, euphemistically, “termination of a pregnancy” as part of the protected “reproductive health decision[s].” Importantly, it prohibits discrimination in the “compensation, terms, conditions, or privileges of employment” on the basis of such a decision.

If there were any doubt that the bill is intended not to get employers out of the bedroom, but rather to involve them in paying for their employees’ “reproductive health decisions,” the bill’s single committee hearing eliminated those doubts. Helpfully recorded, the committee hearing focused not only on forcing employers to provide coverage for “reproductive health decisions,” but on the religious convictions of the Catholic Archdiocese of Washington, D.C., itself. Mr. Grosso made his intent clear to “address” the Hobby Lobby case and require D.C. employers, even those nonprofit pro-life organizations with religious or moral objections, to provide coverage for all “reproductive health decision[s].”

D.C.-based organizations such as March for Life, Americans United for Life, Alliance Defending Freedom and other life-respecting nonprofits in the District would be forced to pay for elective surgical abortions under this bill.

Such a mandate applies to elective abortion itself and does not even have the fig leaf of an “accommodation” like the one the federal government offered to some nonprofits for its abortion-pill mandate. D.C.’s mandate would go well beyond the federal mandate, which has resulted in more than 100 lawsuits and is losing in the federal courts on a massive scale. The same Religious Freedom Restoration Act that has doomed the federal mandate also applies to the District, as does the First Amendment and other federal laws this bill violates. The D.C. mandate is blatantly illegal and doomed to fail.

Perhaps this is why its proponents have been so content to keep the bill under the radar. After the first hearing — and after the Hobby Lobby decision came the next day — the bill began a quieter move through the D.C. Council. It passed the first step without fanfare on Oct. 28. If it passes the next vote and is signed by the mayor, it will become law unless Congress intervenes. Then the same D.C. federal courts that have held that the federal mandate is illegal are expected to also invalidate the D.C. mandate.

Mr. Grosso clearly disapproves of the Supreme Court’s Hobby Lobby decision. Enacting such a blatantly illegal law, though, is tilting at windmills. While abortion advocates are pressing the council for this hopeless mandate, it will be D.C. taxpayers who will foot the bill for its defense and, eventually, for the attorneys’ fees of its challengers. Newly elected Mayor Muriel Bowser will have to take up this ill-fated law’s defense in the first days of her new term.

If Mr. Grosso has some creative theory about how this D.C. abortion insurance mandate will survive legal challenges that the federal mandate has not, he should say so. If he does not, then he owes it to the District’s taxpayers not to waste their money on a political crusade at the behest of the abortion lobby.

Casey Mattox is senior counsel with Alliance Defending Freedom.

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