States Push Back on Biden’s Agenda

New Bills on Conscience Rights, Women in Sports, and Abortion Restrictions

Arkansas Gov. Asa Hutchinson speaks Wednesday Aug. 19, 2020, in Little Rock, Ark., during a news conference at the Capitol to reveal a draft of a proposed hate-crime law that will be considered during the next legislative session.
Arkansas Gov. Asa Hutchinson speaks Wednesday Aug. 19, 2020, in Little Rock, Ark., during a news conference at the Capitol to reveal a draft of a proposed hate-crime law that will be considered during the next legislative session. (photo: Staton Breidenthal / Associated Press)

WASHINGTON — Many states are pushing back strongly through legislation, in order to resist President Biden’s agenda regarding transgender policies, conscience rights and abortion. 

As the Biden administration backs measures like the Equality Act, which would require health-care workers and organizations to perform gender transitions and abortion procedures in spite of conscience-based objections, some states have introduced conscience-rights legislation to protect those who object to such procedures. 

And while Biden issued an executive order on his first day in office barring discrimination based on gender identity in school sports, many states are advancing legislation that would prevent women from having to compete against biological males. 

States have also pushed back against Biden’s pro-abortion agenda by advancing a slate of new pro-life bills.

Arkansas recently passed a measure, the Medical Ethics and Diversity Act, that would allow doctors to decline to perform non-emergency procedures against which they have conscience-based objections. 

The measure, which will take effect in August, also states that a health-care institution, medical provider or health-care payer with a “religious purpose or mission,” like a Catholic hospital, has “the right to make employment, staffing, contracting, and admitting privilege decisions consistent with his, her, or its religious beliefs.”

The very vocal opponents of the measure included the American Civil Liberties Union (ACLU), calling the bill a “brazen attempt to make it easier to discriminate against people and deny Arkansans the health care services they need,” and the Human Rights Campaign (HRC), saying the governor was “proving himself to be a cruel opponent of equality by signing this draconian medical refusal bill.”

But in signing the measure, Arkansas Gov. Asa Hutchinson noted, “The bill was changed to ensure that the exercise of the right of conscience is limited to ‘conscience-based objections to a particular health care service.’ I support this right of conscience so long as emergency care is exempted and conscience objection cannot be used to deny general health service to any class of people. Most importantly, the federal laws that prohibit discrimination on the basis of race, sex, gender, and national origin continue to apply to the delivery of health care services.”

Roger Severino, the former head of the Department of Health and Human Services’ Office of Civil Rights who founded its Conscience and Religious Freedom Division and now runs the HHS Accountability Project at the Ethics and Public Policy Center, told the Register March 30 that the Arkansas law is important because “cancel culture is quickly replacing both science and conscience with ideology in every field, and medicine is no exception.” 

He said the measure “improves access to care by preventing doctors from being fired unjustly and religiously affiliated hospitals from closing,” and “existing civil-rights laws are not weakened by this bill but enhanced.” 

Severino also sees it as a template for other states, and similar legislation already is being considered in Kentucky, Montana, New Mexico, South Carolina and Texas.


State Versions of RFRA

State legislatures in Arkansas, Iowa, Montana, New Hampshire, West Virginia and Wyoming are also considering state versions of the Religious Freedom Restoration Act (RFRA), a 1993 federal law that limits the government’s ability to “substantially burden a person’s exercise of religion” to cases where the government can demonstrate that the burden is “the least restrictive means” of furthering a “compelling government interest.” 

Severino commented that “states that still don’t have Religious Freedom Restoration Acts should pass them. It’s a shame that they are not present in all 50 states because they simply put the burden on government to justify when they impose on religious exercise.” 

Currently, legislatures of 21 states have enacted versions of RFRA. South Dakota recently became the first state in several years to enact a new RFRA law in March, with Republican Gov. Kristi Noem signing a bill into law that, in addition to the standard RFRA language, would bar the state from treating “religious conduct more restrictively than any secular conduct of reasonably comparable risk” or treating “religious conduct more restrictively than comparable secular conduct because of alleged economic need or benefit” in light of concerns over COVID restrictions on worship. 

The Montana Senate recently passed another version of RFRA that is supported by Republican Gov. Greg Gianforte. Matthew Brower, executive director of the Montana Catholic Conference, testified in March that the legislation “seeks to explicitly articulate that religious freedom, guaranteed under our state constitution, must be afforded the highest level of legal protection by requiring that the ‘strict scrutiny’ standard be applied when state action substantially burdens a person's exercise of religion. Requiring the application of the ‘strict scrutiny’ standard helps ensure that we Montanans in the exercise of the great variety of our religions and faith traditions continue to enjoy the legal protections that ought to be afforded such a fundamental right.”


Fairness in Sports

The states have also introduced a substantial body of legislation responding to concerns over fairness in women’s sports. 

The Biden administration recently withdrew government support for a complaint in Connecticut over a policy allowing student athletes to participate in sports on the basis of their gender identity. Three female track athletes filed a complaint over the policy, alleging that it discriminated against them. In fact, the policy resulted in two biological males who identified as female winning 15 state championships in women’s track events. 

Miguel Cardona, Biden’s newly confirmed education secretary who was the former education commissioner in Connecticut, said in February that schools are barred from discriminating based on gender identity in sports. 

“I think that it’s critically important to have education systems and educators respect the rights of all students, including students who are transgender, and that they are afforded the opportunities that every other student has to participate in extracurricular activities,” he said.

In South Dakota, Noem earned backlash when she decided to “style and form” veto a bill that would prohibit males identifying as transgender females from playing women’s sports and would give women a legal remedy if they have to compete against males. 

Noem expressed concern that the measure’s lawsuit remedy provision was too broad and that the National Collegiate Athletic Association (NCAA) would retaliate. Noem proposed restricting the bill to elementary and secondary school athletics, saying that if the NCAA took punitive action against the state, “we could sue them,” but “respected legal scholars inform me that we would likely lose.” 

A coalition of constitutional-rights organizations, including the Alliance Defending Freedom (ADF) and Heritage Action, are calling on Noem to reconsider her veto. 

“The NCAA itself doesn’t require its member schools to allow biological males who identify as female on female teams. But even if it did have such a policy, we’d still rather stand proudly with female athletes than those who stand to profit off of them,” the coalition’s March 29 letter said.

“Last year, Idaho became the first state to proactively reserve female athletic competitions for only biological females at the K-12 and collegiate levels,” the coalition’s letter pointed out. “Just one year later, many states (including your own) are considering similar legislation. Mississippi and Arkansas joined Idaho as the second and third states to sign such legislation into law, and several other state legislatures have passed bills through at least one chamber. Similar bills at the federal level have earned bipartisan and bicameral support, including the support of both Sens. John Thune and Mike Rounds.”

While a federal judge temporarily blocked the Idaho measure in August, there is legislation pending in 25 states that seeks to ensure fairness in women’s sports. Conversely, 16 states, including Connecticut, have measures in place that permit students to compete in school sports based on their gender identity.

The U.S. Conference of Catholic Bishops spoke out in October in support of legislation at the federal level that “would prevent entities that receive federal funds under Title IX from permitting male students to participate in athletic programs designated for women and girls.”

“In education and in sports, we must seek to avoid anything that debases human dignity, including rejection of a person’s body or unequal treatment between men and women,” Bishop Michael Barber of Oakland, California, and Bishop Konderla of Tulsa, Oklahoma, wrote

“Youth who experience gender-identity discordance should be assured the right to participate in, or try out for, student athletics on the same terms as any of their peers, in co-educational activities or, where sexes are separated, in accord with their given sex,” the bishops’ letter said. “Harassment or unjust discrimination against them in this regard is unequivocally immoral. Conversely, a loving response which affirms the value of persons as fellow human beings helps them to develop a genuine peace with their mind and body, rather than facilitating drastic ‘transitions’ in pursuit of an identity fully independent of their physical body. This has particular relevance in athletics, where male competition in activities designated for women and girls can be both unfair and, especially in high-contact sports, unsafe. It is true that some women have excelled in these events with men. But any time a policy facilitating such male competition takes an athletic opportunity away from a female, it is a loss for basic fairness and the spirit of Title IX.” 


State Pro-Life Efforts 

Another area in which states are moving against the Biden administration’s agenda is on the issue of abortion. 

Biden has acted quickly to reverse Trump-era pro-life policies like the ban on overseas funding for groups that promote or provide abortions, and he has also committed to codifying Roe v. Wade. However, as Planned Parenthood, the nation’s largest abortion business, noted in a recent report using data from the Guttmacher Institute, more than  500 abortion restrictions have been introduced in 44 states this year. 

Among these restrictions are 33 on telemedicine abortions. Ohio recently enacted a law prohibiting doctors from prescribing medication abortion drugs through a virtual, telemedicine appointment. This comes amid a push from abortion groups for the Biden administration to lift the Food and Drug Administration’s in-person dispensing requirement on the abortion drug Mifepristone, which would enable widespread telemedicine abortions. 

According to the Guttmacher Institute, 19 states have laws in place requiring the clinician providing the medication abortion to be physically present. 

“The abortion industry is changing, and chemical abortion is the new frontier, and states are motivated to upgrade their regulations,” Sue Liebel, state policy director for the pro-life Susan B. Anthony List, told NBC News.

Recent pro-life legislation in the states also included bills that would ban abortion after the detection of a fetal heartbeat. South Carolina recently passed such a measure, but it immediately faced legal challenges and has been temporarily blocked. 

The Supreme Court took up an abortion-related case on March 29 in Cameron v. EMW Women’s Surgical Center, P.S.C., examining whether Kentucky’s pro-life Attorney General Daniel Cameron can defend the commonwealth’s ban of dilation and evacuation abortions, or “dismemberment” abortions. 

While the case does not directly explore the legality of the ban on dismemberment abortions, the court’s 6-3 conservative majority will be closely watched as it determines if Cameron has the authority to continue defending the law after Democratic Kentucky Gov. Andy Beshear declined to do so.

“We commend Attorney General Daniel Cameron for doing everything in his power to defend Kentucky’s pro-life laws, including its ban on barbaric live-dismemberment abortions, which was enacted with overwhelming bipartisan support,” Marjorie Dannenfelser, president of the Susan B. Anthony List, said in a statement to Catholic News Agency. “State legislators acting on the will of the people have both the duty and the right to protect their most vulnerable citizens — born and unborn. We look forward to seeing this right upheld.”