Paul Tuns
The Equality Act passed in the House of Representatives last week amends the Civil Rights Act of 1964 to add “sexual orientation” and “gender identity” as protected classes under federal nondiscrimination statutes. There has been a great deal of criticism that by adding special protections for transgenderism, the law could undermine or erase women’s rights by opening female institutions from sports to dormitories to biological males who self-identify as female. National Review‘s Alexandra DeSanctis has noted “far from bringing about any new or necessary form of equality, would in fact impose on the entire country the Left’s revisionist view of sex, gender, and human nature.” It pushes a left-wing social agenda rather than battle actual discrimination.
Not surprisingly, part of the Equality Act‘s social engineering includes promoting abortion. As DeSanctis put it, “it would smuggle in a redefinition of discrimination that would make it impossible for individuals and institutions to decline to perform or pay for an abortion.” Or as the Heritage Foundation’s Melanie Israel says, the “Equality Act is a Trojan Horse for Abortion Lobby.” De Sanctis explains why the Act will promote abortion under the guise of equality:
The Equality Act redefines “sex” to include “pregnancy, childbirth, or a related medical condition,” and, as the bill’s opponents have noted, federal agencies and courts already have determined that the phrase “related medical condition” can be interpreted to include abortion.
The bill’s text also stipulates that those with “a related medical condition shall not receive less favorable treatment than other physical conditions,” which would in effect make it illegal for physicians to decline to perform an abortion. The legislation therefore would enable women who are denied an abortion, even as a result of a health-care worker’s religious or conscience objections, to challenge the decision under the law — and most likely, they would be legally successful.
Similarly, as advocates of the Equality Act have openly admitted, those same provisions could be read to require taxpayer funding of elective abortions. Such funding is currently prohibited by the Hyde amendment, typically attached to federal spending bills to prohibit direct reimbursement of abortion procedures.
State governments, too, would be subject to this reading of the law. Because states receive federal funds to underwrite their health-care programs, the Equality Act could require them to cover the cost of elective abortions with that funding.
The United States Conference of Catholic Bishops Secretariat for Pro-life Activities warns that the Act will be used to undermine the Hyde Amendment, which prohibits the federal government from using taxpayer dollars to fund elective abortions directly through Medicaid and is estimated by Michael New of the Charlotte Lozier Institute to have saved more than two million babies since first enacted in 1976.
During a White House press briefing earlier this week, Joe Biden’s press secretary Jen Psaki refused to say the Biden administration would respect conscience rights for doctors who opposed abortion based on religious or moral grounds, or even commit the administration to maintaining the Conscience and Religious Freedom Division at the Health and Human Services Department.
Back in 2018, Mara Keisling, executive director of the National Center for Transgender Equality, said that the act would likely garner opposition from pro-life groups, and said nothing to dispel pro-life concerns. She told Rewire:
“When you start talking about government programs, you’re ultimately talking about health care, which means some people will be afraid that you’re talking about reproductive rights and abortion .. So, that has to be navigated super carefully … 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.”
You will note there is no denial that the Equality Act could be used to promote abortion (under the euphemism “reproductive rights”); there was only a warning that advocates of the bill have to “navigate” the controversy “super carefully.”
Erika Bachiochi, a fellow at the Ethics and Public Policy Center, recently noted in America that “the Equality Act’s sponsors seem to be trying to retool the Pregnancy Discrimination Act [PDA], transforming it from a law that is explicitly neutral as to abortion into a mechanism that may well be construed to require health care providers to perform abortions and states to fund them.” Bachiochi explains:
The original P.D.A., which was passed as an amendment to the Civil Rights Act in 1978, prohibits employment discrimination on the basis of pregnancy, childbirth or “related medical conditions.” Since the 1980s, the final clause has been understood to include abortion: An employee cannot be dismissed for obtaining one. But the text of the P.D.A. itself ensures that it not be interpreted to require employers to fund abortions, nor to prohibit them from doing so.
Abortion neutrality in the P.D.A. makes good historical sense. After all, it was necessary for keeping together the coalition of approximately 200 pro-life, pro-choice, labor and civil rights groups that lobbied for the anti-discrimination law in the late 1970s. But protecting pregnant employees so they might carry their pregnancies to term provided the raison d’etre for the law in the first place.
Both pro-life and pro-choice supporters of the anti-discrimination law well understood the financial and professional pressure pregnant women in the workplace often felt to abort. Indeed, the expansive new abortion right that Roe v. Wade had created in 1973, coupled with a 1976 Supreme Court decision that permitted employers to exclude pregnancy from insurance coverage, amounted, for some women, to a kind of economic coercion in favor of abortion.
There are many reasons to oppose the Equality Act. Transgender battles over biological men competing in women’s sports are the headline-grabbers, but more damagingly, if the Equality Act becomes law, it will have the government take on a decidedly pro-abortion tact.
Paul Tuns is editor of The Interim.