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D.C. Mayor Requests Legal Review of Reproductive Health Non-Discrimination Bill

December 22, 2014 — Washington, D.C., Mayor Vincent Gray (D) has asked the district's Office of the Attorney General to review a reproductive health non-discrimination measure (B20-0790) before he takes any further action on it, the Washington Times reports (Noble, Washington Times, 12/21).

Background

The D.C. Council approved the measure, called the Reproductive Health Non-Discrimination Amendment Act, last week. The bill would amend Washington, D.C.'s Human Rights Act of 1977 to include language prohibiting employers from discriminating against employees based on their reproductive health decisions.

Specifically, the measure states, "An employer or employment agency shall not discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of or on the basis of the individual's or a dependent's reproductive health decision making, including a decision to use or access a particular drug, device or medical service, because of or on the basis of an employer's personal beliefs about such services."

The measure would apply to all employers, whether or not they hold themselves out as religious (Women's Health Policy Report, 12/18).

Gray's Comments, Council's Reaction

Prior to the bill's passage, Gray referred to the measure as "legally problematic" and noted that the district Office of the Attorney General had also raised concerns.

Gray said, "Religious organizations, religiously-affiliated organizations, religiously-driven for-profit entities, and political organizations may have strong First Amendment and [Religious Freedom Restoration Act (PL 103-141)] grounds for challenging the law's applicability to them." He added, "If the Council wishes to adopt this Bill or similar legislation, it should clarify the Human Rights Act's existing exemption for religious and political organizations to ensure that the exemption protects the religious and political liberty interests that the First Amendment and the RFRA are designed to secure" (Washington Times, 12/21).

Before approving the measure, the council acknowledged concerns from the district Office of the Attorney General about the lack of a "ministerial exemption" to the measure. However, the council concluded that the measure did not present First Amendment concerns because such an exemption likely would be "read into" the law upon enactment (Women's Health Policy Report, 12/18). The council also amended the measure to explicitly state that it applies to both men and women.

Conservative Groups, Council Staff Disagree Over Bill's Scope

Meanwhile, the conservative religious group Alliance Defending Freedom called on Gray to veto the measure. ADF senior counsel Casey Mattox argued that the bill would mean that "[e]very employer in the District would have to cover every single reproductive health decision, including elective abortions, regardless of who is on staff." He added that ADF also believes the legislation could prevent employers that advocate against abortion rights from refusing to hire someone who supports abortion rights. Mattox said that ADF likely would sue the district if the measure is enacted.

However, D.C. Council staff members disagreed with ADF's interpretation of the bill, according to the Times. D.C. Council Committee on the Judiciary and Public Safety legislative counsel Ben Shelton said the measure is "designed not to say what types of insurance an employer must offer," but rather to protect employees from being discriminated against based on their reproductive health decisions.

For example, he said the bill would "ad[d] to that list of reproductive health choices, saying you can't terminate somebody because they've taken [emergency contraception] or something like that."

Council member David Grosso (I) also cited employment-related scenarios when introducing the bill in May. "For example, in Wisconsin, after the state legislature passed a law requiring insurance plans to cover contraception, the Catholic diocese told employees that if they used the benefit, they would be fired," he said, adding, "In the past four years alone, individuals in California, Texas, Montana, and Indiana have brought discrimination suits against their employers after being fired from their jobs for being pregnant without being married" (Washington Times, 12/21).