Analysis
Key Developments in State Legislation in 2023
Last year, we wrote about how the 2022 state legislative session was especially destructive for civil rights and religious equality. However, in 2023, lawmakers truly outdid themselves in their unprecedented attacks on civil rights. To provide an idea of the scale here, consider that in 2022, American Atheists tracked approximately 500 negative bills in state legislatures that impacted civil rights and religious equality. In the 2023 legislative session, we tracked more than 1,000 such state bills — about twice as many as the previous high water mark. And, as we will discuss in detail throughout this report, the attacks on equality are getting worse. But this does not tell the whole story — we also tracked more than twice as many state bills intended to protect civil rights and religious equality.
Perhaps the most noteworthy change in state legislation over the past year has been the abrupt shift in laws targeting trans young people. In 2021 and 2022, states considered numerous bans on trans young people participating in school athletics, and 18 such laws were passed. However, in 2023, the same states that passed these bills instead focused on preventing trans young people and their families from accessing gender affirming care. At the end of 2022, only three states had banned this care, and just in the 2023 legislative session, 19 states passed laws or enacted regulations to severely limit or outright ban access to care. It is clear that these bans are driven by religious bigotry and hatred. Christian nationalists are the loudest voices condemning trans youth, their families, and health care providers. Lawmakers supporting these measures have compared trans people to “demons,” said that their god would never make someone trans, and even rebuked Satan for the existence of trans people.
Most of the bills passed in 2023 threaten the medical licenses of doctors and hospitals that offer care to trans youth, but several create criminal penalties for doctors and parents. Moreover, legislative attacks on trans health care were not limited to simple bans. Some states sought to prohibit state funding for trans health care, including care for state employees and their families and at state-funded hospitals. Others restricted the ability of private insurers and businesses to cover such care or imposed ruinous liability on doctors and hospitals who would provide care.
While many of these trans health care bans have been enjoined by district courts, that is starting to change as decisions are appealed to circuit courts that have been packed with ideologically biased judges. And this is despite the fact that recent U.S. Supreme Court precedent (Bostock v. Clayton County) makes clear that sexual orientation and gender identity are protected by federal civil rights laws. If that precedent should be overruled by the Court, then the civil rights of LGBTQ people will be at even greater risk.
Most devastating is the impact that these laws have on trans young people and their families. Families in states that pass these laws are left with few options: move to another state, deny their child the lifesaving care they need, or find other ways to obtain care, potentially putting themselves and their child at risk. Further, this wave of legislation stigmatizes trans youth, negatively impacts their psychological well-being, and encourages bullying and discrimination.
In addition to these legislative attacks on trans health care, state lawmakers continued to undermine access to abortion and reproductive health care. States like Nebraska, which had previously avoided an abortion ban, passed a law that restricted abortion access to 12 weeks. Other states tightened existing restrictions, such as Florida which passed a 15 week ban in 2022, quickly followed by a 6 week ban in 2023. Some states placed additional restrictions on medication abortion, which is the most common method of abortion. Many of these restrictions are tied to increasingly harsh enforcement mechanisms, such as criminal penalties for doctors and patients and loss of medical license. Some of these states have even passed laws removing enforcement discretion for anti-abortion laws from district attorneys or setting up alternative avenues to pursue prosecution.
In the face of these legislative attacks, state lawmakers who support reproductive freedom and the civil rights of trans people have not been idle. The legislative responses from states like California and New York have included increased state funding for health systems and provider training to increase capacity, changes to state-funded health coverage to expand access, and changes to licensure rules to allow additional categories of health care professionals to provide care, among many others.
One significant development is the passage of what are often referred to as “sanctuary” or “shield” bills, which purport to protect providers and/or patients from the enforcement of health care bans in other states. These bills vary greatly, and 15 states have already passed some variation. Specifically, sanctuary bills may contain provisions to limit the ability of courts and law enforcement to assist investigations in other states concerning violation of anti-abortion or anti-trans laws, protect doctors from consequences to their medical licenses or professional insurance for providing care, or protect patient confidentiality and medical records.
These sanctuary laws were passed, in part, due to concerns that states that ban these health care procedures will attempt to prevent individuals from accessing care in other states, criminalize them for doing so, or use their laws to restrict the provision of such care in other states. However, there is uncertainty among legal experts about how effective they will be, as none of these protections have yet been tested in court. Because of constitutional doctrines relating to the Full Faith and Credit Clause and the Comity Clause, as well as interstate licensing agreements, it is unclear whether and how states may engage in enforcement across state lines or limit such enforcement.
Another threat to the provision of necessary health care is the rise of broad denial of care laws, which allow religious hospitals, providers, and payers (such as employers and insurance companies) to deny providing or paying for any type of health care they oppose. For example, justifying their actions on such a law, a hospital might refuse to follow end-of-life medical directives, a doctor may refuse to provide emergency miscarriage management, an insurer may refuse to cover HIV treatment, or an employer may refuse to provide pregnancy coverage for single employees. For the last several years, we have seen more and more states consider such bills, and in 2023, broad denial of health care laws were passed in Florida and Montana. Additionally, some of these bills also incorporate an expansive version of the Ministerial Exemption, applicable to religious health care facilities. By treating these facilities like churches, and doctors and other staff like church leaders, these laws would basically immunize religious health care facilities against claims for violating labor and employment nondiscrimination laws.
Because of these denial of care laws, the increasing number of states that ban or restrict necessary health care, and the increasing application of religious restrictions to patients because of hospital mergers consolidating rural hospitals into religious networks, many state lawmakers are considering how to protect patient access to care. One effort, pioneered by states like Oregon and New York, has been to limit mergers when there is an impact on health access and equity. Washington state, which has long been a leader in legislative efforts to ensure access to care, passed legislation requiring hospitals and doctors to provide urgent care for reproductive emergencies and to allow doctors flexibility to provide patients with medical information, even if their religious hospital employer objects.
Similarly, Washington state passed a health care transparency law several years ago that requires hospitals to disclose whether they refuse to offer various types of reproductive care, including abortion. This is important because when hospitals deny care, they generally do not inform patients, and so patients lack the critical information necessary to make decisions about their care. In 2023, American Atheists worked with lawmakers in Colorado to develop and pass the Patients’ Right to Know Act, comprehensive health care transparency legislation that ensures that hospitals disclose to patients when they deny care for nonmedical reasons.
Beginning in 2021 as attacks on “critical race theory,” the bills we sometimes refer to as “parental rights” bills have continued to evolve and grow into vague and punitive mandates resulting in censorship and surveillance in schools. The number and scope of these parental rights bills have expanded dramatically, as this has become a core political issue for conservatives who use these bills to attack trans youth, sex education, vaccination, and racial justice, to ban books, and to carve religious exemptions into the law. Christian nationalist lawmakers justify these bills by portraying teachers and schools as crazed ideologues, out to indoctrinate children in “gender ideology,” and to misuse history to attack white children. Of course this is nonsense, but it is politically useful nevertheless.
These laws allow a small fringe of radical parents to seize control of school curriculum, ban books that promote understanding and tolerance, and drive out conscientious educators. These laws often provide special legal protection for “parental rights,” a vague and nebulous concept, at the expense of young people’s rights to safety, education, religious freedom, health care, and free speech. Moreover, these laws set the stage for future litigation by Christian nationalist activists to define “parental rights” in ways that further their agenda.
It is ironic that, despite all their claims to oppose “indoctrination” in schools, these same Christian nationalist lawmakers have introduced and passed bills that push religion into schools in new and brazenly unconstitutional ways. Perhaps the most egregious bill passed in 2023 is Texas’s school chaplain bill, which allows school districts to employ unregulated, unqualified chaplains in place of school counselors. Not only will this deprive students of essential services, the bill fails to provide any safeguards necessary to protect the civil rights and religious freedom of students. For example, the law does nothing to prevent districts from hiring chaplains of only one favored religion, prevent chaplains from denying services to students because they are atheist or LGBTQ, or prevent chaplains from proselytizing to students. In addition to this bill, state legislatures considered bills to mandate Ten Commandments monuments in school classrooms, require periods of school prayer, and insert specific Christian nationalist elements into school curriculum.
By using parental rights bills, religiously coercive bills, and other methods to undermine confidence in public schools, Christian nationalist lawmakers build support for school voucher laws, which divert public education funds to support private religious schools. In 2023, we saw a number of states adopt new universal school voucher laws that have no eligibility limitations. For example, Florida passed a law that made $7,700 private school vouchers available to all K-12 students, regardless of income. Families may make use of similar vouchers if they homeschool their children, creating a large incentive to withdraw students from the public education system. This universal voucher program just began in 2023, and when school reopened in September, the number of students participating in Florida voucher programs doubled, causing an explosive growth in costs. These school privatization efforts are driven by large Christian nationalist donors who hope to reap financial benefits from disassembling our public education system, while making Christian education the only viable alternative.
Partner Perspective: Saying No to Faith-Based Chaplains in Public Schools