The 1993 Religious Freedom Restoration Act (RFRA) says no law can impede someone’s right to practice their First Amendment religious freedoms, even if a law wasn’t deliberately or intentionally designed to single out a specific religion or religious belief. The law states, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” But what counts as a “substantial burden” to religious freedom?

H.R. 5272, the Do No Harm Act, is a Democrat-crafted bill that would change how the law answers that question. If passed, it could potentially affect the health of millions of women and the future of the pro-life movement.

The bill and its context

The 2014 Supreme Court decision Hobby Lobby v. Burwell helped clarify the constitutional answer to what counts as a “substantial burden” to religious freedom, though it represented one of the most controversial Court opinions in recent years. The federal government had required through the Affordable Care Act (or Obamacare) that all businesses with more than 50 employees provide their employees with contraceptive and abortion coverage. The Supreme Court ruled 5–4 that under the RFRA this could not be imposed on business owners with sincere religious beliefs opposing those practices — in that particular case, evangelical Christian beliefs.

Republicans and the Religious Right hailed the decision as a pro-life victory against Obamacare and an encroaching federal government, while Democrats lamented the decision as a blow to women’s health. The Do No Harm Act, introduced last month by Rep. Joe Kennedy III (D-MA4), would add several exemptions to the RFRA.

Two exemptions are receiving the most attention. One would end an exemption for “access to, information about, referrals for, provision of, or coverage for, any health care item or service,” clearly meant to legislatively counter the Hobby Lobby decision. Another would end an exemption that “permits discrimination against other persons, including persons who do not belong to the religion or adhere to the beliefs of those to whom the exemption is given,” meant to counter cases such as Kentucky county clerk Kim Davis refusing to grant same-sex marriage licenses or Indiana restaurants refusing to cater same-sex weddings.

What supporters say

Supporters of the bill cast it as both a women’s health measure and a means of ensuring that nobody is immune from American laws.

“Our system must ensure that my religious freedom does not infringe on yours or do you harm. While not its original intent, the Religious Freedom Restoration Act has become a vehicle for those seeking to impose their beliefs on others or claim that the tenants of their faith justify discrimination,” said lead sponsor Kennedy in a press release. “The Do No Harm Act will restore the balance between our right to religious freedom and our promise of equal protection under law.”

What opponents say

Opponents say the bill violates religious liberty and is an attack on freedom.

“Democrats like Kennedy/Scott believe that when Hobby Lobby doesn’t pay for employee’s birth control, they are actually imposing their religion on employees,” wrote conservative columnist Wesley J. Smith in the National Review, arguing that under such an example employees can always obtain their birth control elsewhere besides their employer if they choose. “If this bill passes, one of the last vestiges of religions liberty in this country will be obliterated in the name of furthering a particular social agenda favored by the left.”

Some on the left think the bill doesn’t go far enough. Constitutional law professor Marci Hamilton calls the bill “a step in the right direction” but that it doesn’t repeal enough of the RFRA, arguing, “There should be no religious privilege against any federal aviation law or safety law or EPA regulation.”

Odds of passage

Not surprisingly, the bill’s nine co-sponsors are all Democrats. The legislation has been referred to the House Judiciary Committee and the Subcommittee on the Constitution and Civil Justice, though a vote seems unlikely in the Republican-controlled House.