Norton Says Congress’ Authority Over D.C. Makes Kavanaugh Unique Threat to D.C.’s Women and LGBTQ Community
WASHINGTON, D.C.—Congresswoman Eleanor Holmes Norton (D-DC) today said that, pending statehood, Congress' authority over the District of Columbia means that the nomination of Judge Brett Kavanaugh to the Supreme Court poses a unique threat to women and the LGBTQ community in the District. If the Court overturns or guts Roe v. Wade, Republicans in Congress may try to ban or severely restrict abortion in D.C. If the Court continues to use the federal Religious Freedom Restoration Act (RFRA), which uniquely applies to the District government, to create religious exceptions to generally applicable laws, as it did in Hobby Lobby, women and the District's LGBTQ community would be at risk. Norton also noted Kavanaugh currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, and among his notable dissents was a ruling in which the court upheld the District's ban on assault rifles.
"Judge Kavanaugh's nomination is a threat to the rights Americans hold dear, but he has already shown that he could do more harm to District residents than to any other Americans," Norton said. "A Justice Kavanaugh, together with a Republican Congress, could lead to abortion being in the District, and the Court could use the Religious Freedom Restoration Act to take away the rights of women and LGBTQ residents in the District."
If Roe v. Wade were overturned or gutted, states would have the authority to ban or severely restrict abortion. Although the District would continue to protect reproductive rights, a Republican Congress could use its unique authority over the District to ban or severely restrict abortion in the District in particular, assuming Congress does not try to ban or restrict it nationally. Republicans in Congress have relentlessly attacked abortion in the District by regularly prohibiting the District from spending its local funds on abortions for low-income women, even though 17 states use their funds for abortions. In this Congress, as in prior Congresses, Republicans have raised the stakes by introducing bills in the House and Senate to permanently ban the District from spending its local funds on abortions, so far without success. In the 112th and 113th Congresses, bills were introduced in the House and Senate to ban abortions in the District after 20 weeks of pregnancy. The House passed the bill, but Norton kept the Senate from taking it up.
The RFRA, which provides more protection for religious exercise than the First Amendment, applies to the federal government, D.C. government and the territorial governments, but not state governments. While originally well-intentioned, RFRA has been turned on its head, as evidenced by the Court's Hobby Lobby contraception decision. RFRA was designed as a shield to protect religious freedom, but is now being used as a sword to discriminate against the LGBTQ community and women. In his dissent in Priests for Life v. HHS, Judge Kavanaugh articulated a very expansive view of religious protection under RFRA. If the Court continues to use RFRA to create religious exceptions to generally applicable laws, including anti-discrimination laws, D.C.'s Human Rights Act is at great risk. For example, House Republicans have voted three times since 2015 to nullify or block D.C.'s Reproductive Health Non-Discrimination Act (RHNDA), which prohibits employers from discriminating against employees and their families based on reproductive health decisions, claiming, in part, that it violates RFRA. Norton has kept RHNDA from being blocked or overturned.