Religious Freedom Restoration Act of 1991: Hearing on H.R. 2792 Before the H. Comm. on the Judiciary, 102nd Cong. 34 (1992)

Religious Freedom Restoration Act of 1991: Hearing on H.R. 2792 Before the H. Comm. on the Judiciary, 102nd Cong. 34, 42-43 (1992) (statement of Mark E. Chopko, General Counsel, United States Catholic Conference, Screen Actors Guild):

[W]e do have concerns borne of long and sometimes bitter, divisive and expensive experience in the public arena in the area of abortion, in the area of public services. Whether the Religious Freedom Restoration Act if enacted in its present form will be used to promote access to abortion is a serious issue. The details are pro- vided in my written testimony and in the commentary, and I will not restate those details here. Claims have been, are being and will continue to be made that religious practices, however they may be understood, justify access to abortion. There is no question that abortion is within the scope of activities which the people who drafted this legislation intend will be offered into the courts, and it is certainly, if you believe the public statements of those drafters, a certain number of them are expected to succeed. The risk that abortion on account of religion can be obtained under the Religious Freedom Restoration Act is one the conference believes cannot be ignored.” – Pg. 34

 

Under the current state of the legislative record, abortion claims brought under H.R. 2797 could succeed. As a matter of constitutional construction, we would agree with Professor McConnell and his colleagues that the Court is not likely to re-create constitutional abortion under a different right if it reverses Roe v. Wade. If there is no privacy right, it is unlikely there will be a constitutional free exercise right to abortion. Whether the Supreme Court allows abortion claims under H.R. 2797 depends on legislative intent, not judicial predilictions. We are writing a statute, not the Constitution. This Court defers to legislatures, especially when it says these issues belong in the political realm anyway. Even if only a few claims to obtain abortions do succeed under H.R. 2797, what restraint will remain on district and state attorneys to deny abortions to others who offer affidavits conforming their claims, beliefs, and motions to the prior successful claims? These claims will be numerous and far-reaching in their impact.” – Pg. 42

 

The lives of the unborn are too important to be put at risk under H.R. 2797. If as we foresee, H.R. 2797 creates a wide alternative route to the Court’s abortion jurisprudence for those who favor abortion on demand, an amendment is needed. If, as some supporters of H.R. 2797 so confidently insist, these abortion claims are doomed to failure anyway, there is no reason why they cannot be eliminated from the bill.” – Pg. 43


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