The Equality Act that was recently endorsed by President Joe Biden offers sweeping protections for pregnant women, trans people, and other LGBTQ people against discrimination in terms of employment, housing, education, access to public spaces and businesses, as well as access to public services. This bill is controversial in that it conflates gender identity with sex, and attaches no preconditions–such as a diagnosis of gender dysphoria or undergoing transitioning treatments–to identifying as a gender that does not match with one’s biological sex. What has garnered less attention is the protection it provides to women who are pregnant and the significance of that protection. Ryan T. Anderson PhD, President of the Ethics & Public Policy Center which critiques the ethics of government policy through a Judeo-Christian lens, has suggested that the act would mean that “any refusal to support or provide abortions would now be treated as ‘pregnancy’ discrimination”. Is there substance to this claim?
Of the sectors listed above in which pregnant women will be offered protection, the most relevant sector is in employment. Businesses would likely discriminate against pregnant women when hiring as they do not wish to incur the cost of losing the woman to maternity leave shortly after she is hired. Landlords may also discriminate against pregnant women, as they may not wish for their other tenants to be disturbed by the cries of a new born baby. If the legislation would prohibit the refusal of an abortion to a pregnant woman, this would come under the section regarding access to services which includes “establishment[s] that provides health care”. Considering that only pregnant women can have an abortion, it does not make sense that refusing an abortion amounts to discrimination on the basis of pregnancy. Discrimination entails that an individual is being treated differently than another individual would be treated in the same situation. If a doctor refuses to provide any abortions, refusing an abortion to one woman cannot amount to discrimination on the basis of pregnancy as the doctor would refuse to provide an abortion to any woman who requested one. Therefore, Dr. Anderson’s assertion has no basis in fact. However, judges have a significant amount of scope in the way that they can interpret laws. Were a woman to challenge a state law prohibiting abortion in certain circumstances on the basis of the equality act, a judge could interpret it in such a way as to find in favor of the plaintiff. In Roe v. Wade a woman’s right to abortion was construed from the constitutional right to privacy. This controversial decision shows that there is significant scope to allow judges to construe from a law certain rights or protections which are not immediately apparent in the text of the law itself.
It is unlikely that the proposed Equality Act would prohibit doctors or legislatures from restricting access to abortion, though it could provide a legal basis to challenge such restrictions. Many provisions of the act will be challenged in the Senate, particularly by conservatives, so it remains to be seen if the act will pass in its current form, or even if it will pass at all. The Democrats would have to convince ten Republicans to vote in favor so that they could bypass the filibuster with a 60 vote majority. That seems unlikely considering how great the opposition among conservative voters is to any law that recognizes transgender people as their self-determined gender.