It has been 22 years since President Clinton signed the Religious Freedom Restoration Act into law. For two decades it has applied to every law in the District of Columbia and the federal government. In the intervening decades, 20 other states have followed suit with their own state RFRAs. These RFRAs hold government to a high burden of proof when it burdens religious exercise. Under RFRA, there are no guaranteed outcomes, but the government cannot take burdens on religious exercise lightly.
In two decades of RFRAs, the world has not ended. In fact, not a single person who identifies as homosexual has been harmed by these RFRAs. None. This may come as a surprise to you if you have watched any of the media coverage or been on social media for the last several days. The unhinged claims from the Left have been entirely detached from the reality that these laws have actually existed for decades and have never resulted in any of the things they worry will happen. This is not new. Dire warnings that are unsurprisingly not confirmed by future events have been a common theme in arguments from the Left in recent years.
Prophesying Doom that Never Materializes
The Equal Access Act is the reason your child can have a Fellowship of Christian Athletes group at school. Most Americans would think that permitting students to voluntarily get together before school to pray is a good thing. But when Congress considered the act in 1984, some Democrats, including then-Rep. Barbara Boxer, opposed it because allowing Christian students to gather to pray “could usher in KKK and Nazi” student groups. More than 30 years later, it is clear Boxer was on the wrong side of history. Her worry that letting kids study the Bible would lead to “Mein Kampf” has not been realized.
When the Supreme Court considered the constitutionality of the Partial-Birth Abortion Ban Act in 2006, abortionists argued that approximately 2,200 partial-birth abortions per year were necessary for health reasons. This was important because the law lacked any health exception (except to save the mother’s life). When the Supreme Court issued its opinion eight years ago in April 2007, it held that the law was generally constitutional.
However, the Court invited any abortionist or woman filing a new challenge to show why a partial-birth abortion was necessary in one of those 2,200-per-year instances. Planned Parenthood warned of consequences for women’s health from the decision, just as Justice Ginsburg wrote in a dissent: “One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.”
Eight years later, no such complaint has been filed. I’m not aware of a single example of any woman who was harmed by not being able to have a partial-birth abortion procedure in that time.
There are three possible reasons: (1) by incredible fortune, the threats to women’s health making partial-birth abortion necessary ceased on April 18, 2007; (2) Women are harmed daily, but Planned Parenthood and the abortion industry lack the resources to file the invited lawsuits; (3) the claim that partial-birth abortion was necessary to protect women’s health was a lie.
Finally, when Texas passed HB2, the pro-life law that brought stardom to Wendy Davis, a primary focus of abortion supporters who opposed the bill was its prohibition on abortions after 20 weeks gestation, when the unborn child is capable of feeling pain. This provision was the centerpiece of the controversy, and Davis opposed it at length. But while virtually every part of the Texas law has been challenged in the intervening two years, the prohibition on abortions after 20 weeks has never been challenged. It has been Texas law since October 2013.
Time to Stop Listening
And Texas isn’t alone. Laws like it have been enacted in 13 states. But despite their cries of harm to women’s health, abortionists have only challenged these laws in the Ninth Circuit and in a now-pending Georgia state court case. At least 10 of these laws, including Texas’s, are in effect without legal challenge. As MSNBC reported, there is
a strategic reason to avoid challenging that [20-week] ban…. [A] Texas challenge would go to the conservative Fifth Circuit. Not only would that court potentially uphold the law…, the combination of decisions would create a split in the circuits that would make the Supreme Court likelier to hear it.
This is their choice. But at some point when your warnings of imminent harm are stifled by your own prudential choices, and none of the bad consequences you warn about ever happen, perhaps your claims just aren’t true. That’s critically important to keep in mind with the needless hysteria happening now over completely mischaracterized state religious freedom laws.
But history need not repeat itself. In the children’s story, when Peter repeatedly cries, “Wolf!” the townspeople finally stop listening. It’s time to stop giving credence to the Left’s cries.
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