Norton Condemns Republican Leadership for Bringing Bill Allowing Reproductive Health Discrimination Against D.C. Employees to Rules Committee Today, Final Step Before Floor Vote

April 29, 2015

WASHINGTON, D.C.—Congresswoman Eleanor Holmes Norton (D-DC) today blasted the House Republican leadership for sending to the Rule Committee, at the request of the House's most conservative Members, a disapproval resolution to overturn the District of Columbia Reproductive Health Non-Discrimination Act (RHNDA), which would prohibit employers from discriminating against employees, their spouses, and their dependents because of their private reproductive health decisions. Norton will testify against the disapproval resolution at today's Rules Committee markup, scheduled for 3:00 p.m. in H-313. In her prepared testimony, Norton said, "For the first time ever, the House would affirmatively authorize employers, in this case, in the District of Columbia, to use religion to discriminate against employees for their private, constitutionally protected reproductive health decisions." If RHNDA is overturned, employees in D.C. could be fired for having an abortion after being raped, for using condoms, or for buying birth control for their daughters. The Rule Committee is the final stage before a bill goes to the House floor for a final vote.

"Although their bill so grossly violates the privacy and the reproductive rights of employees in the District of Columbia that it should be inconceivable that they would bring it to the floor of the House of Representatives, House Republicans are set on continuing their war on women, especially the women of the District of Columbia," Norton said. "The Republican leadership decision to send the disapproval resolution to the Rules Committee was made after a new House caucus, the House Freedom Caucus, the most extreme and conservative House caucus, demanded it. Not only does this disapproval resolution violate the private health decisions of employees in D.C., it violates the local democratic rights of 650,000 District residents by overturning a local law that matches our citizens' local interests. I will vigorously defend the District's local anti-discrimination bill from being trampled on at today's Rules Committee hearing."

Norton's testimony, as prepared for delivery, follows:

Statement of Congresswoman Eleanor Holmes Norton

House Committee on Rules

H.J. Res. 43, Disapproving the action of the District of Columbia Council in approving the Reproductive Health Non-Discrimination Amendment Act of 2014

April 29, 2015

I am outraged that the House is considering this unprecedented bill. For the first time ever, the House would affirmatively authorize employers, in this case, in the District of Columbia, to use religion to discriminate against employees for their private, constitutionally protected reproductive health decisions. For the first time since 1991, the House would directly overturn a local District law, a gross violation of the right of the 650,000 taxpaying American citizens who live in the District to govern their own local affairs. The majority on the Oversight and Government Reform Committee did not even have the courtesy to allow D.C.'s locally elected officials to testify at a hearing on their local legislation. I should not have to state the obvious. I am the only member of this House elected by and accountable to the residents of the District. If this bill goes to the floor, I will not be able to vote on it, but every other Member of Congress will.

My Republican colleagues cite freedom of religion, which in this case means the freedom of any employer in the District to discriminate against any employee for the personal, constitutionally protected reproductive choices made by employees in their private capacity even though they are ready and willing to carry out the employer's policies and practices on the job, whatever they are. This is not freedom of religion. It is the freedom to discriminate. The federal courts have been vigilant to contain religious objection because our constitution must accommodate other rights simultaneously, including the right to be free from discrimination and the right to privacy.

The elected D.C. Council unanimously passed, and the elected Mayor signed, the Reproductive Health Non-Discrimination Amendment Act to prohibit employers in D.C. from making employment decisions based on reproductive health decisions of employees, their spouses or dependents, after reports of employees being fired for such decisions. Why did the majority not hold a hearing on H.J.Res. 43? Perhaps they did not want witnesses to testify about the examples from across the country of employment discrimination based on reproductive health decisions. H.J. Res. 43 permits employers to fire a woman for having an abortion due to a rape, fire a man for using a condom, reduce the salary of a parent for buying birth control for his or her child, and decline to hire a woman for using in vitro fertilization.

The Reproductive Health Non-Discrimination Amendment Act is constitutional and legal. Under the U.S. Constitution, laws may limit religious exercise if they are neutral, generally applicable and rationally related to a legitimate governmental interest. The Reproductive Health Non-Discrimination Amendment Act applies to all D.C. employers, does not target religion and promotes equal workplace opportunities. Under the federal Religious Freedom Restoration Act, which applies to the District, a law may substantially burden religious exercise if it furthers a compelling governmental interest in the least restrictive means. Even if the Reproductive Health Non-Discrimination Amendment Act substantially burden religious exercise, D.C. has a compelling interest in providing equal employment opportunities, and courts have held that non-discrimination laws, like the Reproductive Health Non-Discrimination Amendment Act, are the least restrictive means to further a compelling interest.

Religious liberty is protected under the Reproductive Health Non-Discrimination Amendment Act. Employers may continue to make employment decisions based on their religious and other beliefs, and employees must be willing to carry out employers' mission. What employers cannot do is hire and fire based on private, personal conduct, off the job at that. The Reproductive Health Non-Discrimination Amendment Act is subject to constitutional and statutory religious exceptions to discrimination laws. The constitutional ministerial exception permits religious employers to make employment decisions for ministers and ministerial employees for any reason whatsoever. D.C.'s employment non-discrimination law provides exceptions for religious and political organizations to make employment decisions based on religion and political views, respectively. The D.C. exemption says that nothing in the act shall prohibit "religious and political organizations from limiting employment, or admission to or giving preference to persons of the same religion or political persuasion as is calculated by the organization to promote the religious or political principles for which it is established or maintained." Title VII of the 1964 Civil Rights Act allows religious employers to make employment decisions based on religion.

The Reproductive Health Non-Discrimination Amendment Act does not require employers to provide any type of health insurance to employees, including for abortion or contraception. Instead, it requires employees to be treated equally for employment-related purposes. Both the text and the legislative history of the Reproductive Health Non-Discrimination Amendment Act make that clear. Nevertheless, after Members of Congress expressed concerns that the bill requires insurance coverage, the D.C. government, in order to eliminate any doubt, however remote, passed a version of the Reproductive Health Non-Discrimination Amendment Act that expressly states that it "shall not be construed to require an employer to provide insurance coverage related to a reproductive health decision." However, although this provision is in effect now, due to the byzantine procedures Congress imposes on the District in the Home Rule Act, the bill cannot become final until the end of the congressional review period.

H.J. Res. 43 is an abuse of Congress' authority over the District. In 1973, Congress passed the Home Rule Act to give D.C. the authority to legislate on local matters, with a few enumerated exceptions, and to "relieve Congress of the burden of legislating upon essentially local District matters." D.C. employment and reproductive health laws were not among those exceptions.

I ask my Republican colleagues to live up to their fiscal year 2016 budget. The budget says: "America is a diverse nation. Our cities, states and local communities are best equipped and naturally inclined to develop solutions that will serve their populations. But far too often, local leaders are limited by numerous federal dictates." How is today's action consistent with that language in the Republican budget? I urge the majority to live up to its professed principles of local control of local affairs, federalism and limited government.