The House Approves So-Called Equality Act (H.R. 5) — Poses Grave threat to Unborn Children

By Jennifer Popik, JD, Director, Federal Legislation

Late last week, the House of Representatives voted on H.R. 5, the so-called Equality Act. H.R. 5 passed the House over the objection of National Right to Life as well as numerous other life and value-based organization by a vote of 236-173, on May 16.

The bill was supported by 228 Democrats and 8 Republicans. The bill has been sent to the Senate, but no further action has been announced. Click here to see how your member voted.

While the bulk of the attention went to the other purpose of the legislation, language was also included that poses a major threat to the lives of unborn children.

H.R. 5 snuck in language that could be construed to create a right to demand abortion from health care providers. It would also likely place at risk the authority of state and federal government to prohibit taxpayer-funded abortions.

The current Civil Rights Act prohibits discrimination based on race, color, religion, sex, or national origin in “public accommodations” H.R. 5, among other things, would amend the Civil Rights Act by defining “sex” to include “pregnancy, childbirth, or a related medical condition.”

It is well established that abortion will be regarded as a “related medical condition”.1 H.R. 5 goes on to expand this anti-discrimination provision by stating that “pregnancy, childbirth, or a related medical condition shall not receive less favorable treatment than other physical conditions.”

Importantly, H.R. 5 goes on to add “establishments that provide health care” to the list of covered “public accommodations.” Public accommodations are generally defined as facilities, both public and private, used by the public.

Previous examples include retail stores, rental establishments, and service establishments as well as educational institutions, recreational facilities, and service centers. However, providers of health care would now come under this definition.

Taken together these changes would mean that health care establishments and individuals providing healthcare will be required to provide abortion as a “treatment” for pregnancy.

H.R. 5’s new definition of “public accommodations” includes any “establishment that provides health care” and further includes an additional rule of construction that the term “establishment…shall not be construed to be limited to a physical facility or place.”

These provisions would apply to individual health care providers who object to abortion, including those with religious objections. These pro-abortion requirements may also remove the ability of non-physical entities, such as federal and state governments, to exclude abortion from health care coverage, as under the Hyde Amendment.

Historically, when Congress has addressed discrimination based on sex, rules of construction have been added to prevent requiring funding of abortion or nullifying conscience laws. The Congress could have, but Democrats chose not to add any protective language.

But instead of denying that this problem exists, or amending the bill, one organization pushing the legislation suggested that abortion ought to be supporter of the bill has suggested that the issue simply “has to be navigated super carefully.” 2

In late 2018, Executive Director Mara Keisling of the National Center for Transgender Equality said in an interview,

We need to make sure we don’t seem to be sneaking anything into a bill while at the same time we need to do no harm and we need to understand that the reproductive rights movement and the women’s rights movements are two of our greatest allies and two of the movements that are most important to trans people as a whole.”

The author goes on to write, “The worry is that extending sex-based protections to government programs could create a backdoor legal challenge to abortion restrictions like the Hyde amendment, which could potentially threaten whatever conservative support the bill may have.”

Put more clearly, they are acknowledging the abortion connection in the legislation, and were simply trying to keep it out of the public debate on the legislation.

The bill as written may be construed to create a right to demand abortion from health care providers, could lead to unrestricted tax-payer funded abortions, and would destroy conscience protections for health care providers. This dangerous piece of legislation must be stopped.

1.) See 29 C.F.R. pt. 1604 App. (1986) and Doe v. CARS Protection Plus, Inc., 527 F.3d 358 (3d Cir. 2008).