Legislative Report 2015

The First Session of the 114th Congress convened January 6, 2015. Bills are not carried over from 2014. All legislation must be introduced anew.

Information related to federal legislation—text of bills, testimony from hearings, committee reports, floor debates in the Congressional Record, roll call of floor votes, and the like—is available at: congress.gov (replaces thomas.loc.gov).

The Health Care Conscience Rights Act (HCCRA) has been re-introduced in the House. The bill is identical to the measure introduced in the last Congress. After an introductory section on why the bill is needed (Sec. 2), long standing conscience rights policies are applied to the new health care law, the Affordable Care Act (ACA) (Sec. 3), the policy of the Weldon conscience protection amendment is made clearer and more permanent (Sec. 4), and a new section is created in the Public Health Service Act to establish a private right of action so victims of discrimination can take their case to federal court (Sec. 5). See Fact Sheet, “Why We Need the Health Care Conscience Rights Act,” at: origin.usccb.org/issues-and-action/religious-liberty/conscience-protection/upload/why-we-need-the-hccra-sept2013.pdf.

House: On February 12, 2015, Rep. Diane Black (R-TN) introduced the HCCRA (H.R. 940). The measure has 138 co-sponsors, and was referred to two committees: Committee on Energy and Commerce and Committee on Ways and Means. Reps. Jeff Fortenberry (R-NE) and John Fleming (R-LA) are lead co-sponsors of the bill.

On February 13, 2015, Cardinal Seán O’Malley and Archbishop William Lori of the U.S. Conference of Catholic Bishops urged House Members to support and co-sponsor H.R. 940. See: www.usccb.org/news/2015/15-030.cfm.

For NCHLA’s Action Alert, see: nchla.org/actiondisplay.asp?ID=292.

For more information on conscience rights and religious liberty, see the following sections elsewhere in this Legislative Report:

“The Administration’s Mandate”
“Abortion Non-Discrimination Act”

Since there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, this measure asserts a compelling governmental interest in protecting unborn children from this stage.

Similar measures were previously introduced in both the 112th and 113th Congresses, but did not become law.

House: On January 6, 2015, Rep. Trent Franks (R-AZ) re-introduced the Pain-Capable Unborn Child Protection Act (H.R. 36), with Rep. Marsha Blackburn (R-TN) as the lead co-sponsor. The bill has 184 co-sponsors and was referred the Judiciary Committee. H.R. 36 is identical to the measure passed by the House in 2013.

On the bill’s introduction, Rep. Franks stated that the measure “seeks to afford basic protection to mothers and their unborn babies entering the sixth month of gestation.” Rep Blackburn added, “We have a moral obligation to end dangerous late-term abortions in order to protect women and these precious babies from criminals like Kermit Gosnell and others who prey on the most vulnerable in our society.”

A modified version of H.R. 36 was proposed by Rep. Franks in early May.

Floor: It was anticipated that the House would vote on H.R. 36 in January. But the vote was postponed to a later date.

On May 13, 2015, H.R. 36 was brought to the House floor for consideration. A motion to recommit the bill back to committee and add a “health” exception was defeated by a vote of 181-246 (Roll Call 222). The House then passed the Pain-Capable Unborn Child Protection Act (H.R. 36), 242-yes, 184-no, 1-present, 5-not voting (Roll Call 223).

The focus now turns to the Senate.

Letter to Congress: In a January 20 letter to Representatives, Seán Cardinal O’Malley, chairman of the U.S. bishops’ Committee on Pro-Life Activities, urged support for the Pain-Capable Unborn Child Protection Act (H.R. 36) introduced by Reps. Franks and Blackburn on January 6. The conviction in 2013 of Dr. Kermit Gosnell for crimes committed while providing abortions has “led many Americans to realize that our permissive laws and attitudes have allowed the abortion industry to undertake these procedures.” People are repulsed “by the callous and barbarous treatment of women and children in Gosnell’s clinic, and in other clinics that abort children after 20 weeks.”

Some children in Gosnell’s clinic, the Cardinal continues, were “born alive and crying or screaming in pain, until their lives were intentionally and deliberately ended.” These procedures also pose serious dangers to women, “as evidenced by Gosnell’s own manslaughter conviction for one woman’s death, and news about the death or serious complications of other women undergoing such procedures.”

Many women were sent to Gosnell by other abortion clinics. The Cardinal asks: “What does it say about us as a nation, if we will not act against abortions that even full-time abortionists find abhorrent?” The Cardinal concludes: “On behalf of our country and the children whose lives are at stake, I urge you to support the common-sense reform offered by H.R. 36 and to oppose all weakening amendments.” See: nchla.org/datasource/idocuments/LtrHR36.15.pdf.

Background: In the 112th Congress (2012), this measure was introduced as the District of Columbia Pain-Capable Unborn Child Protection Act. Considered under suspension of the rules in the House, the bill received majority support but fell short of the two thirds vote required by the rule for passage.

In the 113th Congress (2013), the measure was amended in House Judiciary Committee to be national in scope and was re-named the Pain-Capable Unborn Child Protection Act (H.R. 1797). The bill was further amended in House Rules Committee. On June 18, 2013, the House passed H.R. 1797 but the Senate took no action.

In the House-passed bill, Congress found “there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier” and asserts “a compelling governmental interest” in protecting unborn children from this stage (Sec. 2 (11)(12)). The bill would amend the U.S. Code to make it unlawful to perform or attempt to perform an abortion if the probable post-fertilization age of the unborn child is 20 weeks or greater. Exceptions were made if the abortion is necessary to save the life of a pregnant woman or the pregnancy is the result of rape or the result of incest against a minor (the rape having been reported to a law enforcement agency or the incest reported to a law enforcement agency or other government agency authorized to act on reports of child abuse or neglect). The bill would bar prosecution of the woman.

Local laws passed by the District of Columbia City Council and signed by the mayor must then be approved by Congress in order to become law. Because of D.C.’s unique character as a federal district rather than a city or a state, the Constitution grants Congress the authority to legislate in D.C. So, even though a law may only affect the District of Columbia, it is a matter of oversight for Congress.

On January 23, 2015 the D.C. mayor signed two pieces of problematic legislation: The Reproductive Health Non-Discrimination Amendment Act of 2014, (RHNDA) and the Human Rights Amendment Act of 2014, (HRAA). The District of Columbia officially transmitted this legislation to Congress on March 6, 2015.

These acts are a direct threat to the First Amendment and our first right, religious liberty. In a February 5, 2015 letter to Congress the U.S. Bishops, joining a coalition of D.C.-based local and national organizations, decried the legislation as “unprecedented assaults upon our organizations” as well as a violation of “the freedom of religion, freedom of speech, and freedom of association protected by the First Amendment and other federal law.” You can read the letter here.

The first act is called The Reproductive Health Non-Discrimination Amendment Act of 2014, (RHNDA). A press release issued by the USCCB explains that it“…prevents religious institutions, faith-based employers, and pro-life advocacy organizations in the city from making employment decisions consistent with their sincerely held religious beliefs or moral convictions about the sanctity of human life…. The law plainly violates the First Amendment, the federal Religious Freedom Restoration Act of 1993 (RFRA), and possibly other federal laws….” For example, this law could force pro-life organizations to hire as spokespersons people who are actively participating in abortion.

The second act approved by the City Council is the Human Rights Amendment Act of 2014, (HRAA). The press release explains that the act “…requires religiously affiliated educational institutions to endorse, sponsor, and provide school resources to persons or groups that oppose the institutions’ religious teachings regarding human sexuality.” This act also clearly violates the First Amendment and RFRA. You can read the full press release here.

Senate: On March 18, 2015 S.J. Res. 10 and 11 were introduced by Senator Ted Cruz (R-TX) and co-sponsored by Senator James Lankford (R-OK). These resolutions of disapproval would have stopped RHNDA and HRAA respectively if passed by both houses of Congress and signed by the president. However, no further action was taken in the Senate.

House: On April 14, 2015, Rep. Diane Black (R-TN) introduced a resolution of disapproval for RHNDA (H. J. Res. 43). Also on April 14, Rep. Vicki Hartzler (R-MO) introduced a resolution of disapproval for HRAA (H. J. Res. 44). Both measures were referred to the Committee on Oversight and Government Reform.

Markup: On April 21, 2015, during a full Committee hearing, H. J. Res. 43 was approved, 20-yes, 16-no. This allowed for further consideration of the measure by the entire House.

Floor: On April 30, 2015, the House passed H. J. Res. 43, 228-yes, 192-no, 11-not voting (Roll Call 194).

Law: Since no further action was taken on either H.J. Res. 43 or H.J. Res. 42, both RHNDA and HRAA automatically became effective on May 2, 2015.

The Administration’s contraceptive/abortifacient mandate continues to be the priority concern in 2015.

Congress needs to pass the Health Care Conscience Rights Act. The measure recently was re-introduced in the House (H.R. 940) by Reps. Diane Black (R-TN), John Fleming (R-LA), and Jeff Fortenberry (R-NE). On February 13, Cardinal Seán O’Malley and Archbishop William Lori of the U.S. Conference of Catholic Bishops urged House Members to support and co-sponsor H.R. 940. For NCHLA’s Action Alert, see: nchla.org/actiondisplay.asp?ID=292.

How has this debate evolved to date?

• The Administration’s contraceptive coverage mandate, first announced in 2011, went into effect for most health care plans on August 1, 2012. Under the mandate, the health care plans are required to cover abortifacient drugs and devices (such as the IUD, Depo-Provera, “morning-after” pills, and the abortion-inducing drug Ella), contraceptives, and sterilization procedures for women, as well as “education and counseling” to promote these to all “women of reproductive capacity,” including minor girls.
   
• Under a rule released by the Department of Health and Human Services (HHS) in 2013, the mandate allows only a very narrow exemption for a “religious employer,” chiefly aimed at what HHS calls “houses of worship.” Other religious organizations offering education, health care and charitable services did not qualify for the exemption. The mandate began to be enforced against them January 1, 2014, under an “accommodation” that only changes the way the objectionable items must be provided to all employees and their dependents.
   
• In 2014, the U.S. Supreme Court ruled that the contraceptive mandate as applied to closely held for-profit corporations violated the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993. However, the Court did not decide whether the RFRA provides protection to non-profit entities. See: www.usccb.org/news/2014/14-116.cfm. Two new Administration rules did not resolve these serious problems. In its comments, the bishops’ Office of General Counsel concluded that the “accommodation” set forth in one rule still required employers who fall outside the government’s narrow definition of “religious employer” “to facilitate the objectionable coverage,” and that the other rule “would make the current situation worse” for closely-held for-profit organizations. See: www.usccb.org/news/2014/14-164.cfm.

For the latest information on the Court, see:www.becketfund.org/hhsinformationcentral/. Fifty-six non-profit cases are characterized as climbing their way up to the Supreme Court, while 49 for-profit cases are viewed as now sliding back to lower courts for resolution.

Key fact sheet includes:

• "Does the HHS Mandate Include Abortifacients?” at: usccb.org/issues-and-action/human-life-and-dignity/contraception/upload/Does-the-HHS-Mandate-Include-Abortifacients.pdf

For additional information on conscience protection and religious liberty, see:usccb.org/issues-and-action/religious-liberty/conscience-protection.

In 2014 the U.S. Government Accountability Office (GAO) issued a report revealing that over a thousand health care plans under the Affordable Care Act (ACA) cover what the law calls “non-excepted” abortions, that is, elective abortions. Cardinal Seán O’Malley, chairman of the U.S. bishops Committee on Pro-Life Activities, urged: “Bring the Affordable Care Act into compliance with the Hyde Amendment and every other federal law on abortion funding, by excluding elective abortions from health plans subsidized with federal funds.” He added that “Congress should not delay in enacting a law to require full disclosure of abortion coverage and abortion premiums to Americans purchasing health plans.” For full statement, see: www.usccb.org/issues-and-action/human-life-and-dignity/abortion/cardinal-omalley-government-report-confirms-bishops-concern-on-abortion-coverage.cfm.

In an article in America (April 7, 2014), “A Careful Reading,” Richard Doerflinger sets forth with detail and clarity the problems related to abortion that exists in the ACA. This article can be accessed online at:americamagazine.org/issue/careful-reading.

The No Taxpayer Funding for Abortion and the Abortion Insurance Full Disclosure Act needs to be passed by Congress. The measure (H.R. 7) was re-introduced in the House. On January 22, 2015, the House approved H.R. 7, 242-yes, 179-no.

See elsewhere in this Legislative Report, “No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act.”

In 2014, the California Department of Managed Health Care (DMHC) ordered all health plans under its jurisdiction, including those provided by churches and other religious institutions to their employees, to provide coverage for all abortions. Other states are considering similar proposals.

California’s action violates federal law. The Weldon Amendment, a part of appropriations law since 2004, provides that governmental bodies receiving federal funding may not discriminate against a health care entity that “does not provide, pay for, provide coverage of, or refer for abortions.” But the Weldon Amendment lacks effective enforcement and has been subject to legal challenges. The Abortion Non-Discrimination Act (ANDA) addresses these problems.

The campaign to coerce everyone to accept abortion as a normal part of health care has accelerated under the Affordable Care Act.

• For a Questions and Answers fact sheet on the need for ANDA, see: www.usccb.org/issues-and-action/religious-liberty/conscience-protection/upload/the-need-for-the-abortion-non-discrimination-act.pdf.
   
• For more information on the California state action, see:www.cacatholic.org/index.php/about/bishops-of-california/922-catholic-bishops-file-federal-complaint-against-state-of-california-department-of-managed-health-care-accused-of-serious-civil-rights-violations.

The most up-to-date version of ANDA was included in a draft Fiscal Year 2013 Labor/HHS Appropriations Bill (Sec. 538). See: nchla.org/datasource/idocuments/ANDA.FY13.pdf. This draft appropriations bill did not become law.

The basic provisions of ANDA are included in the Health Care Conscience Rights Act. For more information, see in this Legislative Report the section on “Health Care Conscience Rights Act.”

First introduced in 2010, the No Taxpayer Funding for Abortion Act would place in permanent law a consistent federal policy restricting the funding and promotion of abortion. On January 9 of 2014, a House committee held a hearing on the measure. In his testimony Richard Doerflinger, Associate Director of the Secretariat of Pro-Life Activities at the U.S. Conference of Catholic Bishops, noted that Congress’s policy against public funding of abortion has been remarkably consistent for decades, but the implementation of the policy in practice “has been piecemeal, confusing and sometimes sadly inadequate.” The Affordable Care Act (ACA) “contains at least four different policies on this issue,” and developments since enactment reveal ways it allows expanded federal support for abortion. The No Taxpayer Funding for Abortion Act would correct these problems. In a letter sent to House Members in 2014, Cardinal Seán O’Malley, chairman of the bishops’ Committee on Pro-Life Activities, stated that this measure “will write into permanent law a policy on which there has been strong popular and congressional agreement for over 37 years: The federal government should not use its funding power to support and promote elective abortion, and should not force taxpayers to subsidize this violence.” See: www.usccb.org/about/pro-life-activities/upload/cardinal-omalley-letter-to-congress-in-support-of-hr-7-jan-28-2014.pdf.

Introduced in late 2013, the Abortion Insurance Full Disclosure Act clarifies rules on notice to be given under the Affordable Care Act (ACA) with regard to abortion coverage and abortion payments in qualified health care plans. In general, any coverage of abortion “shall be disclosed to enrollees at the time of enrollment in the plan and shall be prominently displayed in any marketing or advertising materials, comparison tools, or summary of benefits and coverage explanation made available with respect to such plan. . . .” In such notices, abortion surcharges “shall also be disclosed and identified separately.” In letters to Congress, Cardinal Seán O’Malley, chairman of the bishops’ Committee on Pro-Life Activities, urged Members to support the measure. By requiring health plans to report on their abortion coverage and on the extra payment they charge for the coverage, Americans will be enabled “to make an informed choice of a health plan for themselves and their families that does not violate their moral and religious convictions.” Cardinal O’Malley concluded, “Any claim of ‘choice’ is empty if the law conceals the facts needed to make that choice.” See: www.usccb.org/issues-and-action/human-life-and-dignity/abortion/upload/Cdl-OMalley-Abortion-Insurance-Disclosure-Bill_11-1-13.pdf.

On January 28, 2014, after joining these two measures into one bill, the U.S. House of Representatives approved the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act (H.R. 7), 227-yes, 188-no, 1-present (Roll Call 30). By the end of the 113th Congress, the Senate had not taken action on the House-passed H.R. 7 or on the corresponding two separate Senate bills (S. 946, S. 1848).

House: On January 21, 2015, Rep. Chris Smith (R-NJ) introduced the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2015 (H.R. 7).

Committee: On the same day, the House Rules Committee approved a rule (H. Res. 42) for floor consideration.

Floor: On January 22, 2015, the House passed the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2015 (H.R. 7), 242-yes, 179-no, 12-not voting (Roll Call 45).

The focus now turns to the Senate.

Also see in this Legislative Report, “Coverage for Abortion Extensive under the Affordable Care Act.”

On December 24, 2014, the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services (HHS) published in the Federal Register an Interim Final Rule (IFR) on standards to prevent, detect, and respond to sexual abuse and sexual harassment involving unaccompanied children.

On February 20, 2015, joint comments on the IFR were filed by the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, World Vision, Inc., Catholic Relief Services, and World Relief. For an overview of the comments, see the press release, “Catholic and Evangelical Humanitarian Agencies Voice Concern Over Impact of Rule Regarding Unaccompanied Children,” at: www.usccb.org/news/2015/15-031.cfm.

The comments state that the IFR fails to adequately protect the various grantees and contractors in “providing, facilitating the provision of, providing information about, or referring or arranging for, items or procedures to which such organizations have a religious or moral objection.” In this regard two provisions stand out. First, unaccompanied children who are victims of sexual abuse must be provided with “timely, unimpeded access to…emergency contraception….” (Emphasis added). Second, if pregnancy results from an instance of sexual abuse, care provider facilities “must ensure that the victim receives timely and comprehensive information about all lawful pregnancy-related medical services and timely access to all lawful pregnancy-related medical services” (emphasis added). The comments state that “all” lawful pregnancy-related procedures apparently includes abortion.

The text of the rules includes no religious or moral exception. The preamble refers to various possible accommodations for organizations “even if they object to providing specific services on religious grounds.” The comments raise serious questions about the IFR approach and the various accommodations, and explain that accommodating for religious belief “is not only consistent with longstanding federal policy, but required as a matter of law.” The comments also review some problems with the preamble language.

With respect to the IFR and its implications regarding human sexuality, the comments requests that ORR ensure that grantees and contractors “remain free to act in accord with their religious beliefs and moral convictions….”

The comments conclude: “We welcome the opportunity to meet and work with ORR in developing an appropriate way forward. We believe that, through practical discussions, we can find a resolution that allows the government to fulfill its obligation to care for unaccompanied children, while also respecting the religious and moral beliefs of faith-based organizations that, to date, have provided such critical care for this vulnerable population.”

The comments observe that six out of nine national refugee resettlement agencies in the U.S. are faith-based. These organizations resettle the majority of refugees entering the United States each year.

The full comments can be accessed at: www.usccb.org/about/general-counsel/rulemaking/upload/02-20-15-comments-UM.pdf.