Fifty years after the Supreme Court, in Griswold v. Connecticut,
granted married couples the constitutional right to use birth control,
here we are back at the court, still wrestling with contraception. Am I
the only one who finds this remarkable?
It’s
less startling to find abortion also back at the court, given that
we’ve never stopped debating abortion even as the birth control wars
receded into a dimly remembered past. It’s the conjunction of the two
issues that deserves more notice than it has received. Maybe it’s just a
coincidence of timing that they now sit side-by-side on the court’s
docket, in cases the justices accepted on consecutive Fridays earlier
this month for argument and decision later in the current term.
But
it feels like more than mere coincidence. Big Supreme Court cases don’t
arrive randomly at the justices’ door. Rather, they are propelled by
contending forces deep within American society, conflict eventually
taking the shape of a legal dispute with sufficient resonance to claim
the Supreme Court’s attention. It’s from that perspective, in the waning
weeks of Griswold’s anniversary year, that I propose to consider these
two crucially important cases.
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The birth-control case — actually seven separate appeals that the court has consolidated under the name Zubik v. Burwell —
is a challenge to the accommodation the Obama administration has
provided for nonprofit organizations with religious objections to
covering birth control under their employee health plans, as required
under the Affordable Care Act. All these organizations have to do to
claim the privilege of opting out is to send a letter to the Secretary
of Health and Human Services. The abortion case, Whole Woman’s Health v. Cole,
is an appeal by abortion clinics in Texas from a decision upholding
state regulations that invoke women’s health as a pretext for destroying
the state’s abortion-provider infrastructure.
There are obvious differences between the two cases, which I’ve written about in some detail
recently. The contraception case invokes not the Constitution but the
Religious Freedom Restoration Act, a 1993 law aimed at shielding
religious practices from federal laws that impose on them a “substantial
burden” without sufficient justification. Constitutional interpretation
will govern the Texas case, in which the clinics are challenging the
regulations as the kind of “undue burden” that the Supreme Court’s 1992
decision in Planned Parenthood v. Casey prohibited:
a regulation that has “the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable
fetus.”
But here’s what’s the same: sex, women and religion.
Among
the achievements of the Griswold decision was the separation, as a
constitutional matter, of sex from procreation. Although the court
viewed the issue through the lens of the privacy of the marital bedroom,
that notion of liberty, once established, couldn’t remain confined to
husband and wife — nor, eventually, to man and woman.
As we learned from the arguments and dissents in last June’s same-sex marriage decision, the
separation of marriage — let along sex — from procreation remains
deeply unsettling to segments of the religiously conservative
population. That’s true in theory, in any event: in practice, the
proportion of sexually active American women who have used birth control
is the same
for Catholics as for Protestants: 99 percent. With or without the
Supreme Court, the battle against birth control would have been lost
long ago. But the Griswold decision retains power as a touchstone in
judicial confirmation politics. Robert H. Bork, President Ronald
Reagan’s failed Supreme Court nominee, was acidly dismissive of Griswold
in his 1987 confirmation testimony. Every Supreme Court nominee since
then has accepted the precedent’s legitimacy, and it’s nearly impossible
to imagine the confirmation of any future nominee who expressed a
different position.
So
opposition to birth control was driven out of the public policy arena
by the disregard of a huge portion of the public. In addition, the
anti-abortion cause siphoned off a good portion of the energy. But when
the Obama administration decided to include contraception coverage,
without a co-pay, as one of the mandatory services to be provided by
employers’ group health plans under the Affordable Care Act, the culture
wars flared. The administration exempted churches and other purely
religious entities from the mandate. But its refusal to exempt
corporations like the privately held, profit-making Hobby Lobby Stores, a
nationwide chain of craft stores with thousands of employees, led to
the Hobby Lobby decision
in 2014. And the administration’s insistence that religious nonprofits
like colleges and social-service organizations at least notify the
government of their desire to opt out led to the lawsuits that are now
at the Supreme Court.
In
the Hobby Lobby decision, the court invoked the accommodation the
administration was then offering the religious nonprofits and said that
Hobby Lobby’s religious owners should be given the same privilege. The
fact that the administration was accommodating the religious nonprofits
showed that it could accommodate the for-profit religious corporations
as well, Justice Samuel A. Alito Jr. said in his majority opinion.
Under
the accommodation, the objecting employer gets out of the picture, and
the obligation to provide the contraception coverage passes to its
insurer; the employer has no further involvement. The religious
nonprofit plaintiffs in the new cases object that simply requesting the
accommodation is the first step in a chain of events that retains their
complicity in the sin of enabling any eventual contraception use by
their employees. The government maintains — and the four appeals courts
whose decisions are now under review agreed — that this attenuated
concern can’t be the basis for depriving employees of a government
benefit intended for all women. (Another appeals court recently became
the first to rule for the religious nonprofit employers, but not in time
for that case to be part of the group the Supreme Court accepted three
weeks ago.)
Under
the Religious Freedom Restoration Act, once a burden on a religious
practice or belief is deemed “substantial,” the government must justify
it as serving, as precisely as possible, a “compelling interest.” The
majority in the Hobby Lobby decision was willing to assume, without any
discussion, that government’s interest in making contraceptives broadly
available without cost was compelling; the majority then found that the
interest could be served with the necessary precision by offering the
opt-out accommodation. It fell to Justice Anthony M. Kennedy, in a
concurring opinion, and to Justice Ruth Bader Ginsburg, in a dissent,
actually to explain what was compelling about the government’s interest
“in providing insurance coverage that is necessary to protect the health
of female employees, coverage that is significantly more costly than
for male employees,” to quote Justice Kennedy. An employer’s religious
beliefs could not be permitted to “unduly restrict other persons, such
as employees, in protecting their own interests, interests the law deems
compelling,” he wrote then.
Sex
and women: Justice Kennedy is the last remaining member of the trio of
justices (the others were Sandra Day O’Connor and David H. Souter)
responsible for preserving the right to abortion in the Casey decision
23 years ago. The opinion he co-authored then insisted that although the
state could express its preference for childbirth over abortion, from
the beginning of pregnancy, through a variety of regulations aimed at
influencing a woman’s decision, women retained the right to choose
abortion. It is the unwillingness of legislators in Texas and other
states to live with the compromise that Justice Kennedy was instrumental
in crafting that has finally brought the abortion issue back to the
court.
Sex,
women and religion. I said earlier that these were what the court’s two
new cases have in common. The first two are obvious, the third maybe
not. The contraception case is obviously about religion. The Texas
abortion case comes clothed in the state’s concern for women’s health,
ostensibly to be protected by requiring perfectly well-functioning
clinics to be retrofitted at great expense as mini-hospitals and doctors
to obtain unnecessary and unattainable admitting privileges at local
hospitals. (Judge Richard A. Posner of the United States Court of
Appeals for the Seventh Circuit, in an opinion issued on Monday
striking down a similar admitting-privileges requirement in Wisconsin,
observed that such measures “do little or nothing for health, but rather
strew impediments to abortion.”)
Abortion
opposition has been Republican Party dogma for so long that it’s easy
to regard the position as simply a natural part of our domestic
politics. But its origins are religious to the core, and so is the
source of its current energy, even if judges are too diffident to base
their decisions on that fact, or even to comment on it. The last justice
to do so was the invaluable John Paul Stevens, whose consistent voice
in favor of a robust understanding of the First Amendment’s
Establishment Clause I miss more with each passing Supreme Court term.
In
1989, a case from Missouri reached the court that concerned several
abortion restrictions the state had enacted along with a legislative
preamble declaring that “the life of each human being begins at
conception.” In the decision that resulted, Webster v. Reproductive Health Services,
the court avoided a ruling on the constitutionality of the preamble,
observing that its actual relation to any Missouri law was uncertain and
that the state courts had not yet clarified the matter.
But
in a separate opinion, Justice Stevens took the Missouri Legislature at
its word and seized the moment to declare his view of the
impermissibility of legislation based on the belief that life begins at
conception. There was a “theological basis” for the Legislature’s
position, he wrote, “just as there was unquestionably a theological
basis for the Connecticut statute that the court invalidated in
Griswold.” He continued: “Our jurisprudence, however, has consistently
required a secular basis for valid legislation. I believe it inescapably
follows that the preamble to the Missouri statute is invalid under
Griswold and its progeny.”
Back
to where I began this column: to the common ground between the court’s
two current cases. Yes, there is a fight over birth control that has
never really ended, and a battle over abortion that erupts anew in every
election cycle. But what the Supreme Court may or may not grasp is that
it has on its hands something deeper yet: a struggle over modernity, a
battle for the secular state in which women can make their choices and
design what Justice Ginsburg calls their life course, free of obstacles
erected by those who would impose their religious views on others and
who find in recent Supreme Court decisions encouragement that this time
they might get their way. Seen in that light, the arrival of these two
cases on the court’s docket was no coincidence. It was inevitable.
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