[House Report 114-99]
[From the U.S. Government Publishing Office]


114th Congress    }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                      {       114-99

======================================================================

 
    DISAPPROVING THE ACTION OF THE DISTRICT OF COLUMBIA COUNCIL IN 
 APPROVING THE REPRODUCTIVE HEALTH NON-DISCRIMINATION AMENDMENT ACT OF 
                                  2014

                                _______
                                

 April 30, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Chaffetz, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                      [To accompany H.J. Res. 43]

    The Committee on Oversight and Government Reform, to whom 
was referred the joint resolution (H.J. Res. 43) disapproving 
the action of the District of Columbia Council in approving the 
Reproductive Health Non-Discrimination Amendment Act of 2014, 
having considered the same, report favorably thereon without 
amendment and recommend that the joint resolution do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Explanation of Amendments........................................     4
Committee Consideration..........................................     4
Roll Call Votes..................................................     4
Application of Law to the Legislative Branch.....................     6
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     6
Statement of General Performance Goals and Objectives............     6
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     6
Federal Advisory Committee Act...................................     6
Unfunded Mandate Statement.......................................     6
Earmark Identification...........................................     7
Committee Estimate...............................................     7
Budget Authority and Congressional Budget Office Cost Estimate...     7
Minority Views...................................................     8

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    House Joint Resolution 43 is a disapproval resolution of 
the District of Columbia's passage of the Reproductive Health 
Non-Discrimination Amendment Act of 2014 (RHNDA). RHNDA would 
restrict the ability of organizations within the District of 
Columbia to make employment decisions in line with their deeply 
held beliefs regarding reproductive health. These restrictions 
would apply to both religious and political organizations.
    The ``District of Columbia Home Rule Act'' provides the 
District of Columbia with a system of self-governance and 
greater autonomy, while maintaining Congress' constitutionally-
derived authority to oversee all matters relating to the 
nation's capital. The Home Rule Act provides for a 30 day 
congressional review period (60 day for any law related to the 
criminal code) for any law passed by the Council of the 
District of Columbia (the Council), during which, Congress has 
the ability to pass a Joint Resolution of Disapproval (JRD) to 
strike down any bill that the District passes. The JRD must be 
passed by both Chambers and transmitted to the President for 
his signature within the 30-day review period for the JRD to 
take effect and the District law to be invalidated before it 
becomes law.\1\
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    \1\Sec. 602(c), ``District of Columbia Home Rule Act.''
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    On Tuesday, April 21, 2015, the House Committee on 
Oversight and Government Reform (the Committee) moved to 
favorably report H.J. Res. 43 to the House.

                  BACKGROUND AND NEED FOR LEGISLATION

    On May 6, 2014, the Council of the District of Columbia 
introduced RHNDA during its Legislative Meeting.\2\ The bill 
was subsequently noticed for a Public Hearing that was 
conducted on June 23, 2014 by the Committee on the Judiciary 
and Public Safety.\3\ The Committee marked up the bill on 
October 15, 2014 and voted the bill out of Committee.\4\
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    \2\Councilmembers introduce B20-0790, http://lims.dccouncil.us/
Download/31673/B20-0790-Introduction.pdf.
    \3\Public Hearing on B20-0790, http://lims.dccouncil.us/Download/
31673/B20-0790-HearingRecord2.pdf.
    \4\Four Councilmembers voted in favor with one absence and none 
voting against.
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    On December 2, 2014, D.C. Mayor Vincent Gray sent a letter 
to the District Council regarding legislation that would be 
coming before the Council.\5\ In the letter, the Mayor referred 
to a review conducted by the Office of the Attorney General of 
D.C. that raised concerns about RHNDA. The Mayor cited, 
``significant legal concerns'' over the bill. Specifically, 
Mayor Gray wrote, ``[a]ccording to the OAG, the bill raises 
serious concerns under the Constitution and under the Religious 
Freedom Restoration Act of 1993 (RFRA).'' Mayor Gray warned the 
Council that ``[r]eligious organizations, religiously-
affiliated organizations, religiously-driven for-profit 
entities, and political organizations may have strong First 
Amendment and Religious Freedom Restoration Act grounds for 
challenging the law's application to them.'' The Mayor also 
cautioned the Council that the bill could be read as only 
protecting one sex's reproductive health decisions and thus a 
violation of the Fifth Amendment.
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    \5\Letter from Mayor Gray to DC Council Chairman Mendelson, 
December 2, 2014, (10).
http://lims.dccouncil.us/Download/31673/B20-0790-Mayor-s-Letter-
regarding-Legislative-Meeting1.pdf.
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    The Council's vote on RHNDA was subsequently pushed back to 
December 17, 2014, and Councilmembers worked with the Office of 
the Attorney General on the concerns raised by the Mayor. Mayor 
Gray ultimately sent another letter to the Council on December 
17, 2014, thanking the Council for their efforts to improve the 
bill while reiterating all of his concerns regarding the First 
and Fifth Amendments and RFRA.
    On December 17, 2014, the Council voted on an amendment to 
RHNDA to address the Fifth Amendment concerns. The Council 
unanimously passed the amended version of RHNDA (12-0) that 
same day. The version of the bill passed by the Council 
contained no provisions or amendments that addressed the First 
Amendment and RFRA concerns of Mayor Gray and others.\6\
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    \6\Letter from Mayor Gray to DC Council Chairman Mendelson, 
December 17, 2014, (7).
http://lims.dccouncil.us/Download/31673/B20-0790-Mayor-s-Letter-
regarding-Legislative-Meeting2.pdf.
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    The Council chose to hold the bill until January 8, 2015, 
when it was transmitted to Mayor Muriel Bowser.\7\ Mayor Bowser 
signed the bill on January 23, 2015.\8\ The bill was 
transmitted to Congress for the 30 day congressional review 
period on March 6, 2015. The review period is expected to 
expire on May 2, 2015.
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    \7\Mayor Bowser defeated Mayor Gray in the Democratic primary for 
D.C. Mayor. Mayor Bowser went on to win the general election. Prior to 
becoming Mayor, she served as a Councilwoman and voted to approve 
RHNDA.
    \8\D.C. Act 20-593, January 23, 2015. http://lims.dccouncil.us/
Download/31673/B20-0790-SignedAct.pdf.
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    The language of RHNDA is vague and failed to state that it 
did not require employers to provide insurance coverage for 
contraception and other reproductive health decisions. The 
Council acknowledged this concern.\9\ In response, the Council 
developed emergency and temporary legislation to clarify this 
ambiguity.\10\
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    \9\At the public hearing on RHNDA, Councilmember David Grosso 
stated, ``And what we're saying here in the District of Columbia is 
that [ . . . ] we believe that in the District of Columbia [. . .] you 
should include contraceptive coverage in your coverage for insurance [ 
. . . ] that all employers should do that.'' Public Hearing on B20-
0790, June 23, 2014.
    \10\The District of Columbia Home Rule Act allows the District to 
pass emergency legislation (as determined by Sec. 412(a)). This 
legislation is not subject to the 30 day review period 
(Sec. 602(c)(1)). This legislation is only effective for 90 days. 
Pursuant to Sec. 413 of the ``Rules of Organization and Procedure for 
the Council of the District of Columbia,'' the Council may introduce 
Temporary Legislation that expires after 225 days.
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    The emergency legislation was enacted on March 3, 2015,\11\ 
and expires on June 24, 2015. The temporary legislation was 
signed by Mayor Bowser on April 11, 2015,\12\ and is subject to 
a 30 day congressional review period. The temporary legislation 
signed on April 11, 2015 was transmitted to Congress on April 
22, 2015 and is expected to become law on June 4, 2015. The 
temporary legislation would be law for 225 days from the date 
of becoming law. The emergency and temporary legislation make 
clear that RHNDA does not require employers ``to provide 
insurance coverage related to a reproductive health 
decision.''\13\
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    \11\D.C. Act 21-18, ``Reproductive Health Non-Discrimination 
Clarification Emergency Amendment Act of 2015,'' March 26, 2015. http:/
/lims.dccouncil.us/Download/33471/B21-0102-SignedAct.pdf.
    \12\D.C. Act 21-48, ``Reproductive Health Non-Discrimination 
Clarification Temporary Amendment Act of 2015,'' April 11, 2015. http:/
/lims.dccouncil.us/Download/33472/B21-0103-SignedAct.pdf.
    \13\D.C. Act 21-48, ``Reproductive Health Non-Discrimination 
Clarification Temporary Amendment Act of 2015,'' April 11, 2015. http:/
/lims.dccouncil.us/Download/33472/B21-0103-SignedAct.pdf.
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    Despite the emergency and temporary legislation that has 
been passed, there has been no permanent legislative fix 
offered at this point.
    In its current form, RHNDA violates the First Amendment and 
the Religious Freedom and Restoration Act of 1993 (RFRA). 
Further, the language of the bill is sufficiently vague that it 
could be read to require employers within the District of 
Columbia to provide insurance coverage for reproductive health 
products with which the employers disagree.
    As a result of these fundamental issues with RHNDA, the 
Committee decided to markup H.J. Res. 43 in disapproval of the 
Reproductive Health Non-Discrimination Amendment Act of 2014.

                          LEGISLATIVE HISTORY

    On April 13, 2015, Rep. Diane Black (R-TN) introduced 
H.J.Res. 43, ``Disapproving the action of the District of 
Columbia Council in approving the Reproductive Health Non-
Discrimination Amendment Act of 2014.'' Rep. Mark Meadows (R-
NC) and Rep. Bill Flores (R-TX) are original cosponsors. The 
bill was referred to the House Committee on Oversight and 
Government Reform.
    On April 13, 2015 the Committee noticed a Full Committee 
Business Meeting to consider H.J. Res. 43 on April 16, 2015. On 
April 15, 2015, the Committee noticed that the Business Meeting 
was postponed to April 21, 2015.
    On April 21, 2015, the Committee conducted a Full Committee 
Business Meeting to consider H.J. Res. 43.
    Amendments were not in order during Full Committee 
consideration of the joint resolution under the provisions of 
the District of Columbia Home Rule Act. As a result, no 
amendments were considered in Committee. No amendments can be 
considered on the floor.
    H.J. Res. 43 was reported favorably out of Committee on a 
recorded vote. The ayes were 20 and the nays were 16.

                       EXPLANATION OF AMENDMENTS

    Amendments were not in order during Full Committee 
consideration of the joint resolution under the provisions of 
the District of Columbia Home Rule Act.

                        COMMITTEE CONSIDERATION

    On April 21, 2015 the Committee met in open session and 
ordered reported favorably the joint resolution, H.J. Res. 43, 
by roll call vote, a quorum being present.

                            ROLL CALL VOTES

    There was one recorded vote during consideration of H.J. 
Res. 43:


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill disapproves the action of the District of Columbia 
Council in approving the Reproductive Health Non-Discrimination 
Amendment Act of 2014. As such this bill does not relate to 
employment or access to public services and accommodations.

  STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause 3(c)(4) of rule XIII of the rules 
of the House of Representatives, the Committee's performance 
goal or objective of this joint resolution is to disapprove the 
action of the District of Columbia Council in approving the 
Reproductive Health Non-Discrimination Amendment Act of 2014.

                    DUPLICATION OF FEDERAL PROGRAMS

    No provision of this joint resolution establishes or 
reauthorizes a program of the Federal Government known to be 
duplicative of another Federal program, a program that was 
included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most 
recent Catalog of Federal Domestic Assistance.

                  DISCLOSURE OF DIRECTED RULE MAKINGS

    The Committee estimates that enacting this joint resolution 
does not direct the completion of any specific rule makings 
within the meaning of 5 U.S.C. 551.

                     FEDERAL ADVISORY COMMITTEE ACT

    The Committee finds that the joint resolution does not 
establish or authorize the establishment of an advisory 
committee within the definition of 5 U.S.C. App., Section 5(b).

                       UNFUNDED MANDATE STATEMENT

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         EARMARK IDENTIFICATION

    This joint resolution does not include any congressional 
earmarks, limited tax benefits, or limited tariff benefits as 
defined in clause 9 of rule XXI.

                           COMMITTEE ESTIMATE

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that Rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

H.J. Res. 43--A joint resolution disapproving the action of the 
        District of Columbia Council in approving the Reproductive 
        Health Non-Discrimination Amendment Act of 2014

    H.J. Res. 43 would repeal a recently enacted District of 
Columbia law. Under the District of Columbia Home Rule Act, the 
Congress has 30 days to disapprove laws enacted by the District 
of Columbia. CBO estimates that the new District of Columbia 
law--regarding reproductive health decisions--has no impact on 
the federal budget. Therefore, CBO estimates that enactment of 
H.J. Res. 43 would result in no cost to the federal government. 
Because enacting the legislation would not affect direct 
spending or revenues, pay-as-you-go procedures do not apply.
    H.J. Res. 43 would impose an intergovernmental mandate, as 
defined in the Unfunded Mandates Reform Act (UMRA), on the 
District of Columbia by disapproving and preempting a local law 
that prohibits employers from discriminating based on 
reproductive health decisions. Although the bill would limit 
the application of a local law, it would impose no duty that 
would result in additional spending or loss of revenues. The 
bill contains no private-sector mandate as defined in UMRA.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs) and Jon Sperl (for state and local 
impact). This estimate was approved by Theresa Gullo, Assistant 
Director for Budget Analysis.

                             MINORITY VIEWS

    We strongly oppose H.J. Res. 43. The bill would sanction 
employment discrimination in the District of Columbia under the 
guise of religious liberty. The bill would permit employers to 
make employment decisions based on the private, 
constitutionally protected reproductive health decisions of 
employees, their spouses, and their dependents. The bill is 
also undemocratic. It would overturn the will of the 650,000 
District residents as expressed in legislation passed by their 
elected legislature and signed by their elected mayor.
    D.C. passed the Reproductive Health Non-Discrimination 
Amendment Act of 2014 (RHNDA) after learning that employers 
were making employment decisions based on reproductive health 
decisions. RHNDA ensures that employment decisions are based on 
merit, not reproductive health decisions. For example, RHNDA 
prohibits an employer from firing a woman because she had an 
abortion after being raped, demoting a man because his wife 
used birth control, paying an employee less because his or her 
teenage daughter became pregnant out of wedlock, or firing an 
employee for using fertility treatments.
    RHNDA complies with the Free Exercise Clause of the U.S. 
Constitution because it is a neutral law of general 
applicability that is rationally related to a legitimate 
governmental interest. RHNDA applies to all employers (with 
some exceptions for religious organizations), does not target 
religion, and furthers the governmental interest of equal 
employment.
    RHNDA also complies with the Religious Freedom Restoration 
Act because it furthers a compelling governmental interest in 
the least restrictive means possible. Courts have held that 
non-discrimination laws can be the least restrictive means to 
further a compelling governmental interest.
    Religious liberty is protected under RHNDA by several 
exceptions to discrimination laws. The ministerial exception of 
the First Amendment permits religious employers to make 
employment decisions about ministers and ministerial employees 
without regard to employment discrimination laws. D.C.'s 
employment discrimination law, the Human Rights Act of 1977, 
permits a religious or political organization to make 
employment decisions based on religion and political persuasion 
``as is calculated by the organization to promote the religious 
or political principles for which it is established or 
maintained.'' Title VII of the Civil Rights Act of 1964 also 
permits religious organizations to make employment decisions 
based on religion.
    The majority asserts that RHNDA requires employers to 
provide insurance coverage of reproductive health decisions, 
including contraception and abortion. Neither the text nor the 
legislative history of RHNDA supports that position. RHNDA does 
not mandate that employers provide any type of insurance. RHNDA 
requires that employers treat employees making reproductive 
health decisions in the same manner as other employees for 
employment-related purposes. The legislative history on RHNDA 
is clear on whether insurance coverage is required. According 
to the D.C. Council committee report, RHNDA ``is not about 
insurance coverage.''
    Nevertheless, in order to eliminate any doubt that RHNDA 
could be construed to require insurance coverage, the D.C. 
Council and Mayor passed interim versions of RHNDA that 
expressly state that it ``shall not be construed to require an 
employer to provide insurance coverage related to a 
reproductive health decision.'' The Council and Mayor have 
committed to passing a new permanent version of RHNDA that says 
the same thing. However, under the time-consuming and 
complicated legislative procedures that Congress imposed on the 
District in the Home Rule Act of 1973, D.C. cannot quickly pass 
permanent legislation. Instead, it had to pass an emergency 
version of RHNDA, which lasts for up to 90 days, and a 
temporary version, which lasts for up to 225 days, each of 
which expressly state that insurance coverage of a reproductive 
health decision is not required. The Mayor and Council have 
committed to passing a permanent version as soon as possible.
    Congress passed the Home Rule Act to give the D.C. 
government the same legislative authority as any city or state 
over non-federal matters (except for a small number of 
enumerated exceptions), and to ``relieve Congress of the burden 
of legislating upon essentially local District matters.'' 
Employment and reproductive law matters are unquestionably 
within the District's legislative authority.
    H.J. Res. 43 would authorize employment discrimination 
based on conduct unrelated to employees' ability to fulfill 
their job responsibilities, and, contrary to the majority's 
professed support for federalism and limited government, uses 
federal power to overturn a local law.
                                   Elijah E. Cummings.
                                   Eleanor Holmes Norton.
                                   Gerald E. Connolly.

                                  [all]