RFRA and Barriers to Reproductive Health Care
The Religious Freedom Restoration Act (RFRA), passed in 1993, was intended to restore protections when laws interfered with the exercise of religion, especially for religious minority communities. However, in the years since RFRA’s enactment, RFRA has been misused to justify discrimination against women and LGBTQ people and deny access to reproductive health care.
In Hobby Lobby, the Supreme Court held for the first time that under RFRA, closely held for-profit companies can refuse to comply with the ACA’s contraceptive coverage requirement, permitting these companies to impose their religious beliefs on their employees. In her dissent, Justice Ruth Bader Ginsburg questioned whether the precedent set in this decision could actually be confined to the issue of contraceptive coverage, writing “I fear the Court has ventured into a minefield by its immoderate reading of RFRA.” In the years following, that is exactly what unfolded as RFRA morphed into a license to discriminate.
Private entities have increasingly relied on RFRA to seek exemptions from federal laws that protect or extend access for people seeking reproductive health care. For example, Franciscan Alliance v. Burwell (2016) involved a challenge to an Obama administration regulation implementing Section 1557 of the ACA—the first federal civil rights law to prohibit discrimination on the basis of sex in health care. A group of states and hospitals relied on RFRA in part to assert that the regulations’ protections against discrimination based on gender identity or termination of pregnancy violated their religious liberty. A federal district court agreed, permanently enjoining these provisions of the 2016 regulation.
Another key example is DeOtte v. Azar (2019), a class action lawsuit brought by a for-profit business and group of individuals arguing that RFRA entitles any objecting employer in the United States to a full opt out from the ACA’s contraceptive coverage requirement and Obama-era accommodation process. A federal district court judge agreed and issued a sweeping injunction that prohibited enforcement of the ACA’s contraceptive coverage requirement, including the accommodation, against “[e]very current and future employer in the United States that objects, based on its sincerely held religious beliefs” to providing contraceptive coverage, as well as to “all current and future individuals in the United States” who demand plans in the health insurance marketplace that do not cover birth control.
Apart from abuse of RFRA claims by plaintiffs seeking to deny reproductive health care to others, the Trump administration used RFRA as a justification to promulgate harmful rules that undermined nondiscrimination protections for women and LGBTQ individuals and improperly prioritized ideology over reproductive health and rights. In 2021, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs finalized a rule that greatly expanded the scope of the religious exemption for federal contractors and would have allowed federal contractors to claim a right to fire an employee for their decisions about whether and how to start a family, including becoming pregnant outside of marriage or becoming pregnant while in an LGBTQ relationship, using in vitro fertilization to start a family, or having an abortion. The rule also directed courts to analyze RFRA claims by contractors asserting a religious exemption without appropriately weighing the interests of third parties. Due to pending litigation, the rule was not implemented, and the Biden-Harris administration has proposed to rescind it. The Trump administration also relied on RFRA to support its 2017 Rules that created a broad exemption and enabled virtually any employer or university to deny contraceptive coverage, as discussed above.
The Do No Harm Act would address this RFRA “minefield” by returning RFRA to its original intent and clarifying that it may not be used to harm others. The bill amends RFRA to state that it does not apply to laws that protect against discrimination and laws that “provide for access to, information about, referrals for, provision of, or coverage for, any health-care item or service.” The Do No Harm Act is a federal legislative solution to the continued misuse of religious liberty to sanction discrimination against women and LGBTQ individuals and deny access to reproductive health care. As the Supreme Court shows increasing deference to free exercise claims, with dwindling focus on how they may harm other groups, legislative responses are even more critical.