People With Down Syndrome Still Face Deadly Discrimination | Opinion

ON 3/22/21 AT 7:00 AM EDT

Persons with disabilities face enormous and tragic discrimination that infringes upon their most basic right to life. The coronavirus pandemic has brought to light these many added threats. Evidence that persons with Down Syndrome are significantly more at risk for death from COVID-19 has generated intense controversy regarding societal obligations to protect the most vulnerable. This year, World Down Syndrome Day, commemorated on March 21st, affords the opportunity to call attention to one of the greatest, and largely unseen, human rights abuses of our time: abortion on the basis of disability.

In many parts of the world, a Down Syndrome diagnosis is an effective death sentence. Mothers carrying babies with this and other chromosomal conditions face immense pressure to abort, resulting in dramatically reduced numbers of persons with Down Syndrome being born each year. The United Kingdom, for example, which allows for abortion up to birth for babies with disabilities including Down Syndrome, cleft lip and club foot, has reported a 42 percent increase in abortions due to Down Syndrome over the last decade.

As improved prenatal screening technologies contribute to what has been euphemistically termed Down Syndrome “eradication,” there has been an accompanying surge in protections for persons with disabilities in the womb. Just this week, a bill in Northern Ireland passed the second stage on its way to banning late-term abortions of babies with disabilities—potentially the start of an international trend to protect the lives of persons with disabilities. The United States is at the forefront of this movement with Arizona, Florida and South Dakota in the process of enacting legislative bans, joining the ranks of eight other states that already prohibit abortion due to disability.

While some argue that abortion on the grounds of disability is a woman’s right, the discriminatory emphasis on the abortion of babies with Down Syndrome and other genetic conditions has an impossibly tragic implication. It is not hard to imagine how one could conclude from this practice that it is preferable to never live, rather than to live with these conditions. It must be made clear that, in accordance with international law, abortion on the basis of Down Syndrome and similar diagnoses is an overt violation of the human rights of persons with disabilities.
Although often motivated by a natural, and completely relatable, apprehension about caring for a child with a disability, abortion on the basis of a prenatal diagnosis of disability fundamentally undercuts the equal and inalienable rights that every human being possesses. And discrimination in the womb inevitably perpetuates further discrimination out in the world.

Real equality can never be achieved until the right to life of persons with disabilities is safeguarded.

As the United States grapples with state-level legislation to protect babies with Down Syndrome and other detectable disabilities, opponents of such laws claim they are just another undue restriction on “sexual and reproductive health care,” interfering with “people’s personal health care decisions.” However, the merits of arguments for unfettered “reproductive freedom” must be weighed against the hugely discriminatory outcomes for persons with disabilities.
Prenatal discrimination in no way corresponds with authentic freedom for women; quite the opposite. Evidence shows that women are often coerced by societal and familial pressures to abort babies with genetic disorders—an alarming reality that reveals a deep-seated cultural rejection of persons with disabilities. What these women and families really need is access to support and resources. After all, what does it say about the value that our society attributes to persons with disabilities if we are unable, at minimum, to legally mandate the equal treatment of the most vulnerable in the womb and provide for them once they are born?

Since 2006, the United Nations has celebrated World Down Syndrome Day—this year with a focus on increasing the connectivity of persons living with the condition. In addition to laudable attempts to improve the quality of life of persons with disabilities, it is time that the international community turn its attention to stopping the mass-scale human rights tragedy of prenatal discrimination on the basis of disability, which results in the death of more prenatally tested Down Syndrome babies than are born.

Leading advocates for persons with Down Syndrome at the Jerome LeJeune Foundation brought this conversation to the UN Human Rights Council last week. In an event entitled “Down syndrome: let’s talk more… and better,” the advocacy group united a broad coalition of ambassadors and other government and civil society representatives from every region of the globe to address the issue of discrimination on the basis of disability, before and after birth. This event inspires great hope that governments can recommit to their international legal obligations to guarantee the human rights of all persons—shifting the focus toward the eradication of discriminatory practices, and away from vile efforts to eradicate persons with Down Syndrome and other disabilities.

Elyssa Koren is the director of United Nations advocacy in New York City for ADF International. Elyssa can be found on Twitter:@Elyssa_ADFIntl.

The views expressed in this article are the writer’s own.


EU bishops back Polish abortion ban

The Brussels-based commission representing the European Union’s Catholic bishops, Comece, has defended a ban on abortions in Poland, citing human rights principles, and rejected a resolution condemning the move from the European Parliament.

“Neither EU legislation nor the European Convention on Human Rights provides for a right to abortion – this matter is left up to the legal systems of member-states”, Comece said in a letter to David Maria Sassoli, Italian president of the Parliament since July 2019.

“Respect for the rule of law is essential for the functioning of the Union. It also requires respect for the competences of member-states and the choices made by them in exercising their exclusive competences.”

The letter was published amid continuing protests against the ban on “eugenic abortions” by Poland’s Constitutional Court, which came into force at the end of January.

It said the Catholic Church called for care and protection of unborn life and pregnant women, adding that special safeguards for children before and after birth were set out the United Nations’ 1989 Convention on the Rights of the Child and other documents of international law.

“All necessary support must be provided to women in difficult life situations of unwanted or difficult pregnancies”, said the letter, signed by Comece’s president, Cardinal Jean-Claude Hollerich of Luxembourg and the commission’s vice-presidents from Italy, Germany, Ireland and the Czech Republic.

“A fundamental principle of the EU is that of conferral, under which the Union shall act only within the limits of competences conferred upon it by member-states… Strict observance of this principle is, in turn, a requirement of the rule of law, one of the fundamental values of the Union, enshrined in Article 2 of the Treaty of the European Union.”

Polish feminist and pro-choice campaigners staged anti-government and anti-Church demonstrations after last October’s Constitutional Court judgment, which ruled unconstitutional a clause in Poland’s 1993 abortion law, allowing terminations in cases of “severe and irreparable foetal damage”. Protests resumed when the ruling came into force on 27 January, allowing abortions only in rare cases of rape, incest and threats to a mother’s life.

In a November resolution, the European Parliament also condemned the court judgment as “a new attack on the rule of law and fundamental rights”, and threatened Poland with sanctions, warning the new restrictions would “lead to the expansion of clandestine, unsafe abortion and abortion tourism”.

However, EU intervention was rejected by the Polish Bishops Conference president, Archbishop Stanislaw Gadecki, who said the EU’s 2000 Charter of Fundamental Rights enshrined the right to life and barred “eugenic practices”, adding that the “fundamental human right” to life should always “take precedence over the right to choose”.

In its letter, Comece said it was alarmed the European Parliament resolution appeared to question the right to conscientious objection, also enshrined in the EU Charter, at a time when many healthcare professionals already faced discrimination and “unjust stigmatisation” for their personal convictions. It added that the resolution had failed to condemn attacks on places of worship by Polish protesters, many of whom accused the Catholic Church of inspiring the abortion ban.

“It is necessary to consider fundamental rights such as freedom of thought, conscience and religion in light of their universality, inviolability, inalienability, indivisibility and interdependence”, Comece said. “In regard to the right to conscientious objection, the EU Charter entails the need to respect national constitutional traditions and the development of national legislation on the issue.”

Poland’s Catholic Information Agency said foetal handicap had accounted for 1074 or the 1116 legal abortions in Poland in 2019, according to Health Minstry data, a quarter involving Down’s Syndrome, adding that the Polish Church ran 146 homes and residence facilities, and over 1200 help centres and other projects, for children and single mothers.

Europe’s Brussels-based Federation of Catholic Family Associations backed the Polish court ruling in an appeal with over a hundred other pro-life organisations from Europe, North America and Latin America, noting that the UN’s disability committee had confirmed in 2017 that handicap abortions violated a 2006 UN Convention on the Rights of Persons with Disabilities, which was ratified by the EU in 2010.

In an accompanying statement, Comece said the Polish Constitutional Court had been asked to rule on “eugenic abortions” by Polish MPs in 2019, backed by a mass petition, and had confirmed that any “limitation on the legal protection of human life” must be “an absolute last resort”. It added that MEPs had adopted their resolution before the Polish Court’s 154-page ruling was published “without therefore having real knowledge of the topic”.

Equality Act Would Cancel Religious Freedom


It’s vital to understand just how unconstitutional the Equality Act is.

The Equality Act has said that the Religious Freedom Restoration Act “shall not provide … a basis for challenging the application of” any Equality Act provision.

This would be the first time that Congress not only provided inadequate protection for religious freedom, but deliberately and publicly repudiated it altogether.

To say that the Equality Act, which the U.S. Senate will soon take up after its passage in the House, has changed over the years is a huge understatement.

The first version of this legislation, introduced in 1994, prohibited discrimination in employment on the basis of sexual orientation, but did not apply to religious organizations.

Today, however, the Equality Act would prohibit discrimination on the basis of both sexual orientation and gender identity across multiple sectors of American life, including employment and housing, public education and financing—even the credit markets and jury service.


Worse, it now prohibits anyone from even arguing that its enforcement interferes with the fundamental right to practice religion.

It’s vital to understand just how unconstitutional the Equality Act is.

The freedom to practice one’s religion is not just an optional, take-it-or-leave-it right. Before he drafted the First Amendment with the “free exercise of religion” as the first individual right, James Madison argued to the Virginia Legislature that religious exercise “is precedent, both in order of time and in degree of obligation, to the claims of civil society.”

In other words, it is both fundamental and primary.

One way to see the importance of something is to note the measures taken to protect it. The Supreme Court, for example, repeatedly recognized the importance of religious freedom by holding that government burdens on the exercise of religion must be the “least restrictive means” of achieving a “compelling” purpose.

That is the toughest standard in American law.

The other two branches of government have also said that religious freedom is a fundamental right. For decades, presidents have said so in their Religious Freedom Day proclamations.

President Barack Obama, for example, called religious freedom a “universal human right” and an “essential part of human dignity.” America, he said, “proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose.”

In the Religious Freedom Restoration Act, Congress in 1993 put into a statute the Supreme Court’s earlier standard setting a high bar for the government to interfere with the practice of religion. On the one hand, this standard reflects what the founders, Congress, the Supreme Court, and presidents have all said about religious freedom.

On the other hand, the Religious Freedom Restoration Act does single out any religious practice for special protection or disfavor. That is its genius: the law recognizes the fundamental importance of religious freedom and sets the appropriate standard for courts to handle clashes between government action and the exercise of religion.

While the Supreme Court has said that the Religious Freedom Restoration Act applies only to the federal government, it still requires that federal statutes comply with its standard.

If Congress wants to reject these priorities and say that religious freedom, which Congress unanimously declared in 1998 “undergirds the very origin and existence of the United States,” no longer matters, it must explicitly say so.

For nearly three decades, Congress believed that the Religious Freedom Restoration Act should protect everyone equally—that government should always have to answer for placing burdens on the fundamental right to practice religion. If the government’s end was compelling and the means it used restricted religious practice no more than necessary, government would win.

If not, then religious freedom would win. But everyone appeared to agree on the overall importance of religious freedom and the Religious Freedom Restoration Act’s equal application to everyone.

That was then, this is the Equality Act.

Since the Supreme Court’s 2015 decision creating a right to same-sex marriage, the Equality Act has said that the Religious Freedom Restoration Act “shall not provide … a basis for challenging the application or enforcement of” any Equality Act provision.

This does not simply change the law’s legal standard so that government can more freely do what it wants in the areas covered by the Equality Act. This slams the courthouse door to anyone who would even make an argument that government actions under the Equality Act burden their religious freedom.

By excising the Religious Freedom Restoration Act from the legislation equation altogether, the Equality Act gives government free rein to restrict, compromise, or even eliminate the fundamental right to practice religion in pursuit of the Equality Act’s political agenda. It says that what Obama called an “essential part of human dignity” must always give way to the Equality Act’s political agenda.

This would be the first time that Congress not only provided inadequate protection for religious freedom, but deliberately and publicly repudiated it altogether.

In his 2010 religious freedom proclamation, Obama said that religious freedom is “the natural right of all humanity—not a privilege for any government to give or take away.” The Equality Act proves that in legislation, as in life, actions speak much louder than words.

This piece originally appeared in The Daily Signal.


ANALYSIS Ten-year study shows legalized abortion does not improve maternal mortality

Restrictions on abortion do not lead to an increase in women dying due to a lack of “safe” abortions, according to a new study highlighted by the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG).

In a recent tweet, AAPLOG cited a study published in the peer-reviewed medical journal BMJ Open, which examined maternal mortality in 32 Mexican states over a 10-year period, between 2002 and 2011. The study began by acknowledging the pro-abortion argument that “the legal status of abortion … is a factor that influences maternal health.” They also acknowledged the common argument that restrictions on abortion are thought to lead to “clandestine, or illegal, or unsafe abortions” leading to an increase in maternal deaths.

But instead of discovering data in support of that argument, the study instead found that “states with less permissive abortion legislation exhibited lower MMR [maternal mortality rates]” (emphasis added) than those where abortion laws are more permissive. In other words, pro-life restrictions on abortion did not result in higher maternal mortality rates.

Even in Mexican states that enacted constitutional amendments outlawing abortion, women’s health did not suffer: “No evidence of deleterious or beneficial effect [on maternal mortality] was found for the presence of constitutional amendments protecting the unborn over a 4-year study period.”

To be clear, the Mexico study’s authors did not find evidence that abortion restrictions were the cause of better maternal outcomes. Independent variables between the states explained most of the differences in outcomes. As AAPLOG’s tweet pointed out, “non-legislative factors (female literacy, birth weight, skilled attendance at birth, clean water, etc.) were leading causes” in the lower maternal mortality rates in the states with more abortion restrictions.

An attempted rebuttal published in the noted pro-abortion journal Contraception sought to undermine the Mexico study’s conclusions by attacking the authors’ use of the underlying data, while also engaging in ad hominem attacks. The paper claimed the Mexico study’s authors “have failed to respond to anti-abortion ‘junk science,’ which influences policy in the region,” claims an excerpt in Retraction Watch.

Yet the critique did not hold up to scrutiny. “Sincerely, I don’t know how our study is ‘influencing’ policies in the region, and of course I don’t consider our work as ‘junk science’,” said Elard Koch, the main author of the Mexico study. After an examination of the data and counter-argument in the paper, Koch pointed out a major statistical error in key calculations of the rebuttal that undermined the published conclusions. The flaws in the Contraception article were serious enough that the editors were forced to issue a public retraction.

READ: Flawed study falsely claims laws restricting late-term abortions increase maternal mortality

The finding that abortion restrictions do not cause higher mortality rates deals a blow to a common line of argument for abortion activists. The notion that maternal health suffers when abortion restrictions are enacted is a narrative that abortion activists often trot out in response to the enactment of new pro-life laws. In 2019, in response to Georgia’s heartbeat bill, Hillary Clinton tweeted, “When anti-choice politicians limit access to reproductive care, women die.” She argued that “we must continue to fight the new wave of six-week abortion bans that make women collateral damage for extremist views.”

The misperception about abortion and maternal mortality has its origins in a big lie told by early abortion activists. In the years leading up to the legalization of abortion, abortion activists like Dr. Bernard Nathanson (one of the founders of NARAL) disseminated false statistics about the number of women dying each year from illegal abortions, as Live Action News has reported. The widely cited figure — that 5,000 to 10,000 women were dying each year from back-alley abortions — was a deliberate fabrication designed to advance the pro-abortion agenda. Dr. Nathanson, who later became pro-life, admitted to fabricating this number because it was a “nice, round, shocking figure.”

The Mexico study correlates with historical analyses of maternal mortality in the 20th century. As a Live Action Pro-Life Replies video notes, maternal mortality in the United States dropped precipitously in the decades prior to the legalization of abortion, and not as a result of legalized abortion. It was the advent of antibiotics like sulfa and penicillin in the mid-20th century, not abortion legalization, that resulted in the dramatic reduction of maternal mortality rates.

Current maternal mortality rate comparisons between countries further refute abortion activists’ arguments. Countries like Poland and Malta — which have tight abortion restrictions — have lower mortality rates, at three and nine deaths per 100,000 live births respectively, while the U.S. rate stands at 17 deaths per 100,000 according to the latest data, as Vox reported.

If the Mexico study is right, then the remedy for maternal mortality is not permissive abortion legislation, and abortion activists need to stop using a deceptive narrative to further their cause. By doing so, they prevent us from getting at the real solutions to maternal mortality, as identified by the Mexico study: the “non-legislative factors,” or medical, social, and educational variables, that were shown to have a causal effect on maternal mortality rates.


As Ireland considers assisted suicide, study finds 72% who ‘wish to die’ change their minds

Scientists at The Irish Longitudinal Study on Ageing (TILDA) have found that older people in Ireland who express a desire to die are suffering from depression and loneliness. The study involved 8,000 older individuals living in a community setting. Interestingly, the wish to die was found to be temporary among the vast majority.

These findings are important, as Ireland is soon to consider the Dying with Dignity Bill 2020, which aims to legalize assisted suicide for people with terminal illnesses. The definition of “terminal illness” in the bill includes chronic illness, according to Professor Rose Anne Kenney, a senior author of the study.

Results were published in the journal “Age and Ageing,” and revealed that of those surveyed, one in 29 community-dwelling older people (age 50 and up) said they wished to die in the previous month. They also had thoughts of their own death and believed they would be better off dead. Sixty percent of those who said they wished to die also had co-existing depressive symptoms and 75% said they were lonely. Of those who expressed a wish to die, however, those feelings were temporary, and within two years 72% said they no longer felt that way. In addition, their feelings of loneliness and depressive symptoms also improved, which suggested an important connection.

“These findings demonstrate the close association between depression and the wish to die in later life,” said Dr. Robert Briggs, author of the study. “Most older people with both a wish to die and co-existing depression had not been formally diagnosed with depression, nor received appropriate mental health treatment. Less than one-tenth had received psychological counseling. An enhanced focus on improving access to mental health care should therefore form an important part of any discussion around assisted dying in later life.”

READ: Belgium euthanasia law broken, says academic study

As a result of these findings, researchers have proposed improving access to mental health care to deal with the social isolation concerns surrounding older people, especially amid the COVID-19 pandemic. “The timing of these findings greatly increases their importance and they should inform the decision of legislators and practitioners as they consider the complex issue of assisted dying in the Dying and Dignity Bill 2020,” said Professor Kenny. “Almost two-thirds of participants expressing a wish to die in this study have at least one chronic illness; meeting the criteria for a ‘terminal illness’ as proposed in the bill.”

Assisted suicide preys on vulnerable people, and as previously reported by Live Action News, there is no time limit on when a “terminal illness” will actually take someone’s life. Chronic illnesses are long-term and those who have them can lead happy, healthy lives with proper care.

Multiple studies have shown that those who seek assisted suicide do so not because they want to die a so-called “dignified” death, but because they are depressed and hopeless and they fear being a burden on their loved ones. This most recent research out of Ireland supports this and shows that with time and mental health care, feelings can change and individuals who previously expressed a wish to die can change their minds. If assisted suicide had been offered to them during the time of their depression and loneliness, they may have agreed to it.

The medical community has an ethical responsibility to give people proper mental health care along with physical health care. Prescribed death is not a treatment for any condition — be it depression, old age, or cancer.


How Belgium’s euthanasia law has been consistently abused

2ND MARCH 2021

Pro-euthanasia advocates in Ireland, as elsewhere, insist that properly drawn legislation permitting assisted suicide and euthanasia will ensure that such a law will never be abused.  Numerous safeguards, they assure us, can be put in place. A new academic study from Belgium very much indicates the opposite is the case.

The three authors, who are based at the University of Ghent, are not against euthanasia in principle but they admit that “several legal requirements that are intended to operate as safeguards and procedural guarantees in reality often fail to operate as such. We believe this is ethically and legally problematic and should be of concern to everyone, regardless of their stance on the ethical justifiability of euthanasia in general.” (p. 82)

Euthanasia was introduced in Belgium in 2002. Initially it was offered only to adult patients with a medical condition without prospect of improvement. Later, the law was amended to allow euthanasia for minors but, with time, its interpretation and application has become more and more liberal. And while the number of cases continuously rise, it now includes psychiatric conditions or simply being “tired of life”.

When the law was first introduced in 2002, 24 cases of euthanasia were performed. By 2019 this had risen to 2,655.

What has happened in Belgium is typical.

The authors of the Belgian study found shortcomings in the legislation, in its application and in the monitoring of the practice. With regard to the legislation, they claim that the scope of the law “has been stretched from being used for serious and incurable illnesses to being used to cover tiredness of life.”

For instance, it is required that the patient experiences “constant and unbearable physical or psychological suffering that cannot be alleviated”. But the interpretation of this requirement is problematic as it is not clear “whether the incurability criterion refers to the mere existence of possibly effective treatments or to the existence of possible effective treatments acceptable to the patient.” (p. 87). What happens if the suffering cannot alleviated precisely because the patient refuses a treatment that is otherwise available?

The standards are completely subjective as only the patient can determine what suffering is unbearable or not. This changes and alters the role of doctors, who are “reduced to merely meeting patients’ demands”. (p. 87)

The study refers to empirical evidence and reports that in Belgium “euthanasia is performed increasingly frequently in cases of psychological suffering” (p. 87) Also, the Monitoring Commission admitted that cases of “tiredness of life” have been reported.

The opinion of a second physician, beside the one who kills the patient, is required by the law but it is nonbinding. If legal criteria are not met, the physician has no legal means to report this or to prevent the euthanasia from occurring. This makes the second opinion totally irrelevant.

“The obligatory consultation of one or two independent physicians may fail to provide a real safeguard. Their tasks are quite limited, and, more importantly, their advice is not binding anyway. The final authority to perform euthanasia lies with the attending physician who can perform it even against the (negative) advice of the consulted physicians”, the study says (p. 102).

The Belgian law also established a Monitoring Commission with the task of checking reports on euthanasia cases and, if the legal criteria are not met, it must refer the case to the Public Prosecutor. This has happened only once since the law entered into force in 2002.

The study found that “the Commission is unable to check the fulfillment of various legal criteria, and it has substantial authority to (re)interpret the Euthanasia Law as it sees fit.” (p. 102)

Its functioning is undermined by the underreporting of the euthanasia cases. Recent research suggests that one third of cases are not reported. Moreover, the advice of the second consultant does not have to be included, making the report “overly concise”, according to the article.

“Several commentators have observed that the Commission does not seem to act as a filter between physicians who perform euthanasia and the Public Prosecutor, but instead as a shield that prevents potentially problematic cases from being referred”, the study claims.

For instance, a member of the Commission resigned in September 2017 after a case involving a patient suffering from advanced dementia and Parkinson disease was not reported to the Public Prosecution. Not a single criteria was met and euthanasia had not even been requested by the patient.

Other cases where the legal criteria were not met emerged through the years. (Here is an example)

The authors of the study note: “Our concern is that the Commission’s current level of discretion in assessing the legitimacy of euthanasia cases in practice leaves it with considerable powers that would normally be the prerogative of the legislature or the judiciary.” (p. 101)

This academic article confirms what the anti-euthanasia campaigners have always claimed: initial safeguards are removed with time, through a change in the legislation but also through more liberal interpretations of the law by courts, medical committees or monitoring commissions.

“Several of these shortcomings are structural and thus require more than simply increased oversight”, conclude the authors of the study.

The Belgian examples shows that once euthanasia is introduced, it becomes almost impossible to limit its scope or to avoid abuses.




Yesterday, the U.S. House of Representatives passed HR5, the so-called “Equality Act,” to amend various provisions of the Civil Rights Act of 1964. If it passes the Senate and is signed into law by the president, the bill will cause incalculable damage to our society—with a particular assault on women and religious believers. The bill is expressly designed to impose a controversial sexual-ideological scheme on the American public, and to forbid any religiously-based objections to that agenda.

The prologue to the bill says its purpose is to “prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.” But as the rest of the bill makes clear, this means prohibiting all disagreement and outlawing biological distinctions. And the “other purposes” include restricting the free exercise of religion. (As I highlighted in a previous column, the bill will also continue to normalize abortion as a medical procedure like any other, and compel physicians and other healthcare providers to participate in abortion despite their moral objections.)

Three key provisions of the bill form its essential structure: redefinition of the term “sex” to deny biology; the expansion of the term “public accommodation” to include any place where people gather outside a private residence; and explicit denial of religious freedom and religious-liberty protections.

The first, most fundamental provision proposes changing the 1964 Act by replacing the term “sex” with “sex (including sexual orientation and gender identity).” Groups supporting the imposition of LGBTQ+ ideology on the law have been attempting to persuade federal courts to define sex this way for many years. And they scored a historical victory in 2020 in Bostock v. Clayton County, in which the Supreme Court held that Title VII of the ’64 Act includes gender identity and sexual orientation in its definition of “sex.” Even some supporters of this ruling, however, recognize the sophistry of Justice Gorsuch’s majority opinion, and thus its vulnerability in future cases under the current structure of the Court.

HR5, if passed, will resolve that vulnerability. Or will it? One of the most vexing aspects of the ’64 Act is that, while its purpose was principally to outlaw discrimination because of sex, “sex” is not defined in the Act. While HR5 now defines sex as “including sexual orientation and gender identity,” it defines neither. In mainstream LGBTQ+ ideology, “gender identity” is “fluid.” Thus, I might identify as male one day and female the next—or according to which restroom line is longer at the ballpark, theater, or parish fish fry.

For HR5 expands the ’64 Act’s definition of “public accommodation” to include any “place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display”; and “any establishment that provides a good, service, or program, including a . . . food bank, service or care center, [or] shelter.” This language means that parishes, parochial schools, and other religiously affiliated institutions could be sued under the bill. In fact, it is difficult to conceive of any place or program outside a private residence that is not included in this definition.

For example, any Catholic Youth Organization sporting event is a place of recreation and exercise. Every Christmas nativity scene is a public display. Every pregnancy counseling center is a service or program. Every diocesan-sponsored woman’s shelter and food bank is, well, a shelter and foodbank. If a church, mosque, synagogue—or any affiliated school, recreation center, or food pantry—provides any of these programs or services, it will be compelled to allow biological men, for example, to use the women’s restroom. Sports teams would be compelled to allow boys to use the girls’ locker room. Shelters for abused and battered women would be forced to admit males. And of course, girls would be forced to compete against boys in sporting events. The bill expressly denies any religion-based objection.

The bill’s sponsors, recognizing that it is an infringement on the free exercise of religion, explicitly deny application of the most important statutory security of the free exercise of religion, the Religious Freedom Restoration Act (“RFRA”). The bill specifically provides that RFRA “shall not provide a claim concerning, or a defense to a claim under” HR5. This means two things.

First, if an individual or institution wants to sue a governmental entity to prevent it from enforcing the bill, it may not use RFRA as the authority for its lawsuit. To bring a legal action against any person, one must have statutory or common-law authority under which one prosecutes her claims. As it stands, RFRA provides just such authority. It has been used widely and successfully across the country to protect churches, schools, and other institutions from otherwise generally applicable laws that would force them to violate their religious practice or conscience. Under HR5, this powerful shield against government intrusion on religious liberty would be removed.

Second, if a church, school, or any other place of “public accommodation” is itself sued by an individual or the federal government for violating HR5, it may not use RFRA as a defense against the lawsuit. The very purpose of RFRA is to protect the free exercise of religion from generally applicable laws that unduly burden religious freedom. Without invalidating the law, RFRA is used to fight for exemptions from it. The Equality Act will remove that defense, leaving churches, mosques, synagogues, and virtually any other institution without defense against its imposition of secular ideology.

The Equality Act is the uncompromising legislative imposition of a destructive social ideology. And it is an assault on the free exercise of religion. That is its purpose, and if it becomes law, that will be its effect.

Kenneth Craycraft is a licensed attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology.


Bishops voice opposition to Equality Act as Congress prepares to vote

Washington DC, Capitol Building© Abadesign / Shutterstock

Catholics press for further changes to Scotland’s controversial hate crime bill

The flag of Scotland. Credit: Lynx Aqua/Shutterstock.
The flag of Scotland. Credit: Lynx Aqua/Shutterstock.

.- Catholics are pressing for further changes to Scotland’s controversial hate crime bill amid a last-minute consultation.

The Scottish Parliament’s justice committee gave the public just four days to respond to the consultation, which ended at 10 a.m. local time on Monday.

Scotland’s Catholic Parliamentary Office issued an urgent appeal on Friday to Catholics to share their views on the Hate Crime and Public Order (Scotland) Bill. The legislation has reached the third stage of the parliamentary process, the last step before it becomes law.

The Catholic Parliamentary Office, founded by the Scottish bishops in 1991, said that it remained “deeply concerned” by proposed drafts of the section of the bill relating to freedom of expression.

Humza Yousaf, the Cabinet Secretary for Justice, asked for comments on four options for the freedom of expression clause.

The Catholic Parliamentary Office said that the clause was “extremely important” as it would affect the right to free speech.

“We have argued from the beginning for a strong freedom of expression clause in relation to religion, religious beliefs and practices, and the position of not holding religious beliefs, and we are glad that this has been included in options 1 and 2,” it said.

“However, we remain deeply concerned at the lack of similarly strong terms for the protected characteristics of sexual orientation and transgender identity. This weakness is common across all four options.”

It continued: “The beliefs which underpin these characteristics raise moral questions that are hotly disputed in a way similar to religion, and free and open debate must be allowed as must the right to disagree.”

“There should be no threat of prosecution for expressing the belief that, for example, there are only two sexes or genders; that a man cannot become a woman and vice versa; or that marriage can only be between one man and one woman.”

“Further, nobody ought to be criminalized for using a person’s birth name or pronoun.”

The office encouraged Catholics taking part in the consultation to emphasize four points.

First, that discussion or criticism of “sexual conduct and practices” and of marriage which “concerns the sex of the parties to the marriage” should be given clear protection in the freedom of expression clause under the protected characteristic of “sexual orientation.”

Second, that no one should be criminalized for expressing the belief that biological sex is immutable.

Third, that the bill should clearly acknowledge “the belief that sex is immutable, that there are only two sexes or genders, and the freedom to use birth names and pronouns.”

Fourth, that the justice committee should avoid creating “a hierarchy of protected characteristics.” The Catholic Parliamentary Office said that, as the bill presently stands, “religion is being held to a much higher standard of accountability than any other protected characteristic.”

The Scottish Government introduced the bill in April 2020 in response to an independent review of hate crime laws led by retired judge Lord Bracadale. The government says that the bill modernizes, consolidates, and extends existing hate crime legislation. It also abolishes the offense of blasphemy.

Ministers have indicated that they wish to see the bill pass into law within weeks. The Scottish Parliament as a whole would need to insert the amendments into the bill as it has already passed its first and second stages, reported The Herald newspaper.

Scotland’s bishops sounded the alarm over the bill in July. In a submission to the justice committee, they expressed concern that the legislation could criminalize the Bible and the Catechism of the Catholic Church.

The bill creates a new crime of stirring up hatred against any of the protected characteristics covered by the bill, which include race, religion, sexual orientation, and transgender identity.

Commenting on the bishops’ submission, Anthony Horan, the director of Scotland’s Catholic Parliamentary Office, said: “Whilst acknowledging that stirring up of hatred is morally wrong and supporting moves to discourage and condemn such behavior, the bishops have expressed concerns about the lack of clarity around definitions and a potentially low threshold for committing an offense, which they fear, could lead to a ‘deluge of vexatious claims.’”

He continued: “A new offense of possessing inflammatory material could even render material such as the Bible and the Catechism of the Catholic Church inflammatory. The Catholic Church’s understanding of the human person, including the belief that sex and gender are not fluid and changeable, could fall foul of the new law.”

The bill also faced criticism from secular free speech campaigners, including the comedian Rowan Atkinson, who signed an open letter in August saying that the bill “creates stirring up offenses without any intent being examined; merely that the words, action, or artwork might do so.”

Yousaf agreed in September to change the bill so that it would only cover offenses where the stirring up of hatred was intentional.

But following a hearing in October, critics said they worried that the law could apply to speech uttered within a private dwelling if the speaker intended to stir up hatred.

Christian leaders have appealed for further changes to the bill. An “unprecedented alliance” of Catholic and Evangelical leaders called earlier this month for more time for “detailed consideration” of the bill.

“The Parliament now has approximately four weeks to complete the passage of the bill. This is extraordinarily tight and risks inadequate and ill-thought-through legislation being passed,” they wrote in a Feb. 12 letter to Yousaf.

“No workable solutions to issues of freedom of expression have so far been suggested. If no such solutions can be found, we hope the Scottish Government will now consider withdrawing the stirring up hatred offenses in Part 2 of the bill to allow more detailed consideration and discussion and to ensure freedom of expression provisions, which enshrine free and open debate, are afforded the scrutiny they require.”


Fury at ‘do not resuscitate’ notices given to Covid patients with learning disabilities

Vulnerable people have encountered ‘shocking discrimination’ during pandemic, says Mencap charity

‘People with learning disabilities already get a raw deal from the health services.’‘People with learning disabilities already get a raw deal from the health services.’ Photograph: Nathan Stirk/Getty Images

People with learning disabilities have been given do not resuscitate orders during the second wave of the pandemic, in spite of widespread condemnation of the practice last year and an urgent investigation by the care watchdog.

Mencap said it had received reports in January from people with learning disabilities that they had been told they would not be resuscitated if they were taken ill with Covid-19.

The Care Quality Commission said in December that inappropriate Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) notices had caused potentially avoidable deaths last year.

DNACPRs are usually made for people who are too frail to benefit from CPR, but Mencap said some seem to have been issued for people simply because they had a learning disability. The CQC is due to publish a report on the practice within weeks.

The disclosure comes as campaigners put growing pressure on ministers to reconsider a decision not to give people with learning disabilities priority for vaccinations. There is growing evidence that even those with a mild disability are more likely to die if they contract the coronavirus.

Although some people with learning disabilities such as Down’s syndrome were in one of four groups set by the Joint Committee on Vaccination and Immunisation (JCVI) which the government promised would be offered the vaccine by tomorrow, many were classified lower categories of need and are still waiting.

NHS figures released last week show that in the five weeks since the third lockdown began, Covid-19 accounted for 65% of deaths of people with learning disabilities. Figures from the Office for National Statistics show that the rate for the general population was 39%, although the two statistics are drawn from different measurements.

Younger people with learning disabilities aged 18 to 34 are 30 times more likely to die of Covid than others the same age, according to Public Health England.

Edel Harris, Mencap’s chief executive, said: “Throughout the pandemic many people with a learning disability have faced shocking discrimination and obstacles to accessing healthcare, with inappropriate Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) notices put on their files and cuts made to their social care support.

“It’s unacceptable that within a group of people hit so hard by the pandemic, and who even before Covid died on average over 20 years younger than the general population, many are left feeling scared and wondering why they have been left out.

“The JCVI and government must act now to help save the lives of some of society’s most vulnerable people by urgently prioritising all people with a learning disability for the vaccine.”

More than 14m people have received a first vaccine dose so far, and care providers who spoke to the Observer said many people with learning disabilities had been vaccinated in the last week. But some are still waiting. One woman from the West Midlands who has a rare form of Down’s syndrome told the Observer she had not yet been given a date.

“It’s really frustrating – it’s been a fight and it shouldn’t have been a fight,” she said. Her condition means she is in category four – people who are clinically extremely vulnerable – but her GP did not have details of her condition on record – a common problem, according to Mencap.

“I had to call them lots of times,” she said. The practice accepted last week that she needed to be vaccinated, she said, but she was still waiting. “For people in a similar situation to me, they won’t have been badgering them as much as me.”

A lack of badgering is part of the reason why people with learning disabilities may be more likely to die from Covid-19 than the rest of the population, according to Dr Keri-Michèle Lodge, a consultant in learning disability psychiatry in Leeds.

“Doctors often don’t understand that someone with learning disabilities may not be able to communicate their symptoms,” she said. “Carers are sometimes not listened to – you might notice something is wrong, but that is often written off as part of their behaviour.

“People with learning disabilities already get a raw deal from the health services. Fewer than two in five people with a learning disability live until they are 65.”

An analysis by the Office for National Statistics last week showed that six in 10 Covid deaths were of people with a disability.

“The biggest factor associated with the increased rate of death from their analysis was living in care homes or residential settings,” Lodge said. “They prioritised people in care homes for vaccinations, but that was only for older adults. They completely forgot about people with learning disabilities in a really similar setting. I don’t know if the government were blindsided or just neglectful.”

Professor Martin Green OBE, Care England’s chief executive, said: “As the largest representative body for independent providers for adult social care, Care England remains concerned that the government has not given individuals with a learning disability a higher level of priority for the Covid vaccine.

“We urge the government to remove the arbitrary distinction between prioritising those with a severe or profound learning disability and those with a mild or moderate learning disability, and prioritise all those with a learning disability in priority group four. People with learning disabilities must not be overlooked at any time.”

A spokesperson from the Department of Health and Social Care said: “It is completely unacceptable for ‘do not attempt CPR’ decisions to be applied in a blanket fashion to any group of people. This has never been policy and we have taken action to prevent this from happening.

“We have asked the CQC to undertake a review of notices issued during the pandemic. This review has started and will report later this year. As this proceeds, we will continue to work across the health and care system to address the issue.”


  • This article’s headline was amended on 13 February 2021 to remove an incorrect reference to “learning difficulties”. The article was further amended on 14 February 2021 to add a statement from the Department of Health and Social Care.