END Illicit Chinese Tobacco Act

— 585 — Department of Labor and Related Agencies l Direct agencies to refocus enforcement of sex discrimination laws. The President should direct agencies to focus their enforcement of sex discrimination laws on the biological binary meaning of “sex.” PRO-LIFE MEASURES l Promote pro-life workplace accommodations for mothers. Federal law should protect life and promote pro-family policies. Current law, the Pregnancy Discrimination Act,3 provides nondiscrimination protections in the workplace for pregnancy, childbirth, or related medical conditions. The Pregnant Workers Fairness Act (PWFA)4 requires employers to make reasonable accommodations for women “to the known limitations related to the pregnancy, childbirth, or related medical conditions,” unless “the accommodation would impose an undue hardship on the operation of the [employer’s] business.” The Americans with Disabilities Act (ADA) also provides nondiscrimination and accommodation protections in the workplace for certain pregnancy-related disability.5 None of these laws requires an employer provide health insurance benefits for elective abortion. l Pass a law requiring equal (or greater) benefits for pro-life support for mothers and clarifying abortion exclusions. Congress should pass a law requiring that to the extent an employer provides employee benefits for abortion, it must provide equal or greater benefits for pregnancy, childbirth, maternity, and adoption. That law should also clarify that no employer is required to provide any accommodations or benefits for abortion. l Keep anti-life “benefits” out of benefit plans. Some benefits attorneys and pro-choice advocates have argued since the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision6 that the longstanding doctrine of Employee Retirement Income Security Act of 1974 (ERISA)7 preemption should block individual states’ efforts to prohibit employers from helping employees procure abortions via offering various kinds of coverage under employee-sponsored benefit plans. ERISA should not be allowed to trump states’ ability to protect innocent human life in the womb. Congress and DOL should clarify that ERISA does not preempt states’ power to restrict abortion, surrogacy, or other anti-life “benefits.” RELIGION l Provide robust protections for religious employers. America’s religious diversity means that workplaces include people of many faiths and that many employers are faith-based. Nevertheless, the Biden Administration has been hostile to people of faith, especially those with traditional beliefs — 586 — Mandate for Leadership: The Conservative Promise about marriage, gender, and sexuality. The new Administration should enact policies with robust respect for religious exercise in the workplace, including under the First Amendment, the Religious Freedom Restoration Act of 1993 (RFRA),8 Title VII, and federal conscience protection laws. l Issue an executive order protecting religious employers and employees. The President should make clear via executive order that religious employers are free to run their businesses according to their religious beliefs, general nondiscrimination laws notwithstanding, and support participation of religious employees and employers as federal contractors and in federal activities and programs. l Clarify Title VII’s religious organization exemptions. Congress should clarify Title VII’s religious organization exemptions to make it more explicit that those employers may make employment decisions based on religion regardless of nondiscrimination laws. l Provide Robust Accommodations for Religious Employees. Title VII requires reasonable accommodations for an employee’s sincerely held religious beliefs, observances, or practices unless it poses an undue hardship on the employer’s business. These accommodation protections also apply to issues related to marriage, gender, and sexuality. Unless the Supreme Court overrules its bad precedent, Congress should clarify that undue hardship means “significant difficulty or expenses,” not “more than a de minimis cost” as the Court has previously held. General EEOC Reforms. The Equal Employment Opportunity Commis- sion (EEOC) does not have rulemaking authority under Title VII and other laws it enforces, yet it issues “guidance,” “technical assistance,” and other documents, including some that push new policy positions. EEOC should disclaim its regulatory pretensions and abide by the guidance reforms dis- cussed below. l EEOC should disclaim its regulatory pretensions. l Affirm decision-making via majority vote of Commissioners. EEOC should affirm as policy the Title VII requirement that it exercise substantive power via majority vote of Commissioners, not by unilateral Chair action or by delegation to staff.

— 495 — Department of Health and Human Services l HHS should restore OCR authority to review requests for and render opinions on the application of RFRA to requests for religious accommodation of people, families, and doctors who cannot in good conscience take or administer vaccines, including those made or tested with aborted fetal cell lines. l HHS should restore Section 1557, Section 504, and other OCR regulations and fix guidance documents. In 2020, the Trump Administration’s OCR published regulations under Section 1557 of the Affordable Care Act that restored the agency’s enforcement of that law to the limits of its statutory text, deferred to the ACA’s widespread use of a binary biological conception of sex discrimination, and specified that the regulation must comply with the religious exemption and abortion neutrality clauses in Title IX from which it is derived as well as the Religious Freedom Restoration Act and other laws. Courts blocked core provisions of that rule from going into effect. In 2022, the Biden Administration proposed to reinstate a rule contradicting the scope of the statute and imposing nondiscrimination on the basis of sexual orientation and gender identity. It is expected that this rule will be finalized in 2023 even though several courts have issued rulings against the interpretation on which it is based. l OCR should return its enforcement of sex discrimination to the statutory framework of Section 1557 and Title IX. Specifically, it should: 1. Remove all guidance issued under the Biden Administration concerning sexual orientation and gender identity under Section 1557, particularly the May 2021 announcement of enforcement82 and March 2022 statement threatening states that protect minors from genital mutilation.83 2. Issue a general statement of policy specifying that it will not enforce any prohibition on sexual orientation and gender identity discrimination in the Section 1557 regulation and that it will prioritize compliance with the First Amendment, RFRA, and federal conscience laws in any case implicating those claims. DOJ should commit to defending these actions aggressively against inevitable court challenges, including under cases such as Heckler v. Chaney.84 — 496 — Mandate for Leadership: The Conservative Promise 3. Issue a proposed rule to restore the Trump regulations under Section 1557, explicitly interpreting the law not to include sexual orientation and gender identity discrimination based on the textual approach to male and female biology taken by Congress in the ACA, the need to recognize biological distinctions as part of the sound practice of health care, and the need to ensure protections of medical judgment and conscience. DOJ should agree to defend this rule to the Supreme Court if necessary. 4. Issue a general statement of policy announcing that it plans to enforce Section 1557 discrimination bans by refocusing on serious cases of race, sex, and disability discrimination. In particular, OCR should highlight its 2019 investigation and voluntary resolution agreement with Michigan State University based on the sexual abuse of gymnasts by Larry Nassar. OCR should also coordinate with the Department of Education on a public education and civil rights enforcement campaign to ensure that female college athletes who become pregnant are no longer pressured to obtain abortions; pursue race discrimination claims against entities that adopt or impose racially discriminatory policies such as those based on critical race theory; and announce its intention to enforce disability rights laws to protect children born prematurely, children with disabilities, and children born alive after abortions. 5. Issue and finalize the Trump-era draft disability rights regulations concerning crisis standards of care and use of Quality of Life Adjusted Years (QALYs), and reissue and finalize a disability regulation (withdrawn by the Biden Administration) that prohibited discriminatory application of assisted suicide and denial of life-saving treatments for disabled newborns. l OCR should withdraw its pharmacy abortion mandate guidance. OCR should withdraw its “Obligations Under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services” guidance for retail pharmacies,85 which purports to address nondiscrimination obligations of pharmacies under federal civil rights laws and in fact orders them to stock and dispense first-trimester abortion drugs. The guidance invents this so-called requirement and fails to acknowledge that pharmacies and pharmacists have the right not to participate in abortions, including pill-induced abortions, if doing so would violate their sincere moral or religious objections. Moreover, no federal civil rights laws preempt state pro-life statutes.