Op-ed: Intent of HB3042 is clear
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House Bill 3042, which has passed out of the West Virginia Legislature and is headed to the Governor's desk, the so-called Equal Protection For Religion Act, better known as Religious Freedom Restoration Act (RFRA)-style legislation, has absolutely nothing to do with protecting the free and open exercise of religion broadly. This legislation's intended goal is to grant religious belief and exercise supremacy over any and all other rights and liberties in the state of West Virginia, subjugating others to the whims of those who claim that an act or refusal of an act is "motivated by a sincerely held religious tenet or belief, whether or not the exercise is compulsory or a central part or requirement of the person's religious tenets or beliefs."
The duplicity of the act is immediately on display with even a cursory reading. Lines 16 through 20 of the act read, in part, "nor may anything in this article be construed to constitute a defense to any claim based upon a refusal to provide emergency medical services as required by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. -- 1395dd; nor may anything in this article be construed to protect actions or decisions to end the life of any human being, born or unborn...." This language was intentionally inserted to deprive those who may make a claim that access to abortion care cannot be denied because it is motivated by a sincerely held religious tenet or belief.
In the case of Texas v. Becerra, a Texas District Court ruled that Centers for Medicare and Medicaid Services (CMS) guidance and a letter from the Secretary of the Department of Health and Human Services, Xavier Becerra, alleging that Texas abortion laws are preempted by the Emergency Medical Treatment and Active Labor Act (EMTALA) could not be enforced. The ruling read, "HHS may not enforce the Guidance and Letter's interpretation of EMTALA--both as to when an abortion is required and EMTALA's effect on state laws governing abortion--within the State of Texas or against the members of the American Association of Pro Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA)." The authors of HB3042 wanted to make sure no one could do an end run around this ruling as it is not specifically applicable in West Virginia.
With Roe v. Wade having been overturned last year by the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, the authors felt secure in referring to 'life of the unborn." There are certainly religious groups for whom access to abortion care, otherwise known as reproductive healthcare, is a religious tenet. According to the National Council of Jewish Women (NCJW), for example, "Jewish sources explicitly state that abortion is not only permitted but is required should the pregnancy endanger the life or health of the pregnant individual. Furthermore, 'health' is commonly interpreted to encompass psychological health as well as physical health. NCJW advocates for abortion access as an essential component of comprehensive, affordable, confidential, and equitable family planning, reproductive, sexual health, and maternal health services." So, whose religious beliefs are really being protected here?
Under the applicability and severability portion of the legislation it states that "This article applies to all state and local laws, and the implementation of those laws, whether statutory or otherwise, and whether adopted before or after the effective date of this article." That, too, was intentional. Numerous municipalities in West Virginia have passed non-discrimination ordinances that prohibit discrimination in housing, employment and public accommodations based on sexual orientation, gender identity, veterans' status, and genetic information. The clear intent here is to provide a legal basis for discrimination against the LGBTQ+ community to continue in those municipalities, so long as the justification provided is religious in nature.
While I myself am not a member of the LGBTQ+ community, I am an outspoken atheist Humanist. Does this mean that I may be the target of discrimination, ostracism, or other refusal to accommodate, serve, protect, or provide on the basis of another's alleged beliefs with the passage of this legislation? It sure reads like it. As a Humanist, I subscribe to what are referred to as the Ten Commitments. The Ten Commitments, as described by the American Humanist Association, are Empathy, Critical Thinking, Ethical Development, Peace and Social Justice, Service and Participation, Altruism, Humility, Environmentalism, Global Awareness, and Responsibility. What these values do not entail is using the state and courts to impose hateful and willfully ignorant beliefs and ideologies on the population at large. Those who wrote and have voted for HB3042 can't say the same about their values.
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Eric Engle is assistant WV State Director for American Atheists and 2022 recipient of the Freedom From Religion Foundation Freethinker of the Year Award.