As the Texas Legislature convenes for yet another special session this week, lawmakers will face a surprise item buried on the agenda that would affect religious liberty.
Senate Bill 7 (originally Senate Bill 2880 and then Senate Bill 6), which did not make it out of the first special session, is on the agenda this week during the special session called by Gov. Greg Abbott. On its face, the intent of this bill is to outlaw the manufacturing, mailing or distribution of medications that induce abortions.
That is controversial in itself. However, buried in the text of the bill without being clearly labeled as such is an attempt to exclude all abortion-related criminal charges from the Religious Freedom Restoration Act, a bipartisan piece of legislation adopted in 1999. Texas, like many other states, followed the lead of the 1993 national legislation also called by the same name, or RFRA for short.
The national legislation was promoted by an interfaith coalition of religious liberty advocates led by Baptist Joint Committee for Religious Liberty. In Texas, the Texas Baptist Christian Life Commission was a key player in promoting a state version.
For three decades, RFRA has been embraced by both Republicans and Democrats, conservatives and liberals.
The purpose of RFRA, both on the national and state levels, is to ensure that government is required to follow the least restrictive means possible when balancing governmental regulations against the right to freely express one’s religious beliefs. When a court ruled in a Texas case in 1997 that the national RFRA legislation applies only to federal cases, 21 states — including Texas — adopted state versions of RFRA. The Texas law was adopted in 1999.
For three decades, RFRA has been embraced by both Republicans and Democrats, conservatives and liberals. But now some Texas legislators appear concerned RFRA could provide an exception to their anti-abortion legislation if anyone were to claim a religious belief in some uses of abortion — which some groups, including most Jews, do.
Although this addendum to the abortion medication bill has not been widely noticed, Texas Impact is sounding an alarm and urging constituents to contact their legislators to maintain the viability of RFRA.
“If allowed to become law, (this bill) would establish a precedent for selectively applying protections that Texas religious communities of all faiths have relied on for decades,” the advocacy group warns in a handout.
Technically, the pending legislation would amend Chapter 110 of the Texas Civil Practice and Remedies Code, which embodies the Texas Religious Freedom Restoration Act. That law says state government “may not substantially burden a person’s free exercise of religion” unless the government can prove the burden “is in furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that interest.”
Texas Impact warns this bill “would cut the legs out from under the protections in Texas RFRA by carving out an exception to the application of RFRA for a specific policy topic (abortion).”
Texas Impact warns this bill “would cut the legs out from under the protections in Texas RFRA.”
“SB-6 would specifically prevent defendants from claiming their religious freedom is violated by the enforcement of any provision of Texas’ abortion ban laws, including the laws that were in effect before Roe v. Wade. It would also prevent a defendant from suing under Texas RFRA if they believe their religious freedom has been violated.”
The handout warns: “This would be the first instance in which the application of Texas RFRA is prohibited in association with a policy topic — but it would not necessarily be the last. The same language could be inserted on any issue where individuals or communities of faith could otherwise assert Texas RFRA protection, including immigration, LGBTQ issues, direct service provision to marginalized populations, restrictions on uses of their property, or other issues.”
Texas Impact further warns the Texas RFRA law “is intended to protect religious freedom all the time, not just when it’s convenient.” Amending it “would set a dangerous precedent to name a policy area where religious freedom does not apply.”
“Texas RFRA is intended to offer religious organizations the confidence to follow their religious teachings even when those teachings are at small or great odds with Texas laws — while holding space for instances when the state’s compelling interest requires a person or group to deviate from the course of action their faith would most suggest,” the handout explains. “Amending Texas RFRA through SB-6 would send an unfortunately clear message to practitioners of all faiths that religious freedom is issue-specific.”
In the last special session, SB-6 was adopted by the Senate but not by the House. The bill’s sponsors in the Senate are Paul Bettencourt, Brian Birdwell, Donna Sue Campbell, Charles Brandon Creighton, Brent Hagenbuch, Bob Hall, Adam Hinojosa, Phil King, Lois W. Kolkhorst, Mayes Middleton, Tan Parker, Angela Paxton, Charles Perry, Charles Jeffrey Schwertner and Kevin Sparks.
An identical bill in the Texas House was introduced by Rep. Jeff Leach.
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