If the Supreme Court were to conclude that the plantiffs in Zubik v. Burwell plaintiffs have established a substantial burden on religious exercise, the case is not over. Under the Religious Freedom Restoration Act, the government may enforce even a law that substantially burdens religious exercise if that law advances a compelling governmental interest and is the least-restrictive means of advancing that interest. In the 2014 Hobby Lobby decision, the Supreme Court majority assumed, without deciding, that the coverage regulations advanced a compelling interest. And in his concurring opinion, Justice Kennedy went further: It was “important to confirm,” he wrote, that “a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”
The government’s interest in ensuring that women have contraceptive coverage is compelling indeed. Access to contraception has many benefits—some of them obvious, others less so. And these benefits explain why the CDC has listed family planning as one of the 10 most important public-health advances of the 20th century.
Pay attention to the Supreme Court’s upcoming contraceptive-coverage cases and you’ll hear horror stories from religious-right groups about an “abortion-pill mandate” (here’s ADF and ACLJ). These groups know that contraception is popular and that, to most people, campaigns to block birth control would seem Jurassic. With abortion more controversial, claims about compulsory distribution of “abortion pills” sound much scarier. Indeed, the plaintiffs’briefs in Zubik claim that the accommodation would make the plaintiffs complicit in the provision of coverage for, among other things, “abortifacients.”
But neither surgical abortion nor the abortion pill (known as RU–486) are part of the Affordable Care Act’s coverage requirements. So why are courts, websites, and inboxes awash in complaints about the termination of pregnancies?
Yesterday, I evaluated the unprecedented arguments, by the plaintiffs in Zubik v. Burwell and its companion cases, that the process for seeking a religious exemption from the contraceptive-coverage regulations itself burdened the objectors’ religious exericse. Today, I move to a more basic question: Are these idiosyncratic claims sincere?
Like all free-exercise provisions, the Religious Freedom Restoration Act protects only sincere religious beliefs; it does not permit challengers to cloak ideological or financial objections in religious garb. Insincerity can reveal itself in several ways: prior inconsistent conduct, claims that are suspiciously timed, or outright admissions of an ulterior motive. The RFRA challenges to the contraceptive coverage regulations—and especially the accommodation—have presented several of these elements. But the government, in resisting these RFRA challenges, has not challenged the plaintiffs’ sincerity.
That said, there are several reasons to doubt the sincerity of several plaintiffs’ claims, and to see these lawsuits as an exercise in politics arising from broader conservative and religious opposition to the Obama administration’s positions on issues such as healthcare reform, stem cell research, abortion, and marriage equality. This apparent insincerity provides yet another reason to reject the latest round of RFRA challenges to the contraceptive accommodation.
Birth control is back at the high court. On March 23, the Supreme Court will hear oral argument in Zubik v. Burwell and its six companion cases. Despite what you may have heard, religious objectors—whether they are nuns or Notre Dame—are not required to distribute birth control. On the contrary, an accommodation enables religious objectors to opt out of offering contraceptive coverage to their employees; once the objectors request the accommodation, the government arranges for the objectors’ insurance companies or plan administrators to provide the coverage—at no cost to either the objectors or their students and employees. But does this accommodation itself violate objectors’ free-exercise rights under the Religious Freedom Restoration Act?
No, say eight of the nine federal appeals courts to consider the question. These courts have rejected the argument that by opting out of providing contraceptive coverage, objectors’ religious exercise is substantially burdened because the government arranges for a third party to pick up the slack. Read More
On Wednesday, the Supreme Court heard oral argument in Whole Woman’s Health v. Hellerstedt, a constitutional challenge to a pair of Texas restrictions on abortion providers. The first provision requires doctors who perform abortions to have admitting privileges from a hospital no more than 30 miles from their clinic; for a variety of reasons, these privileges are very difficult for abortion providers to obtain. The second provision requires abortion clinics to meet the rigorous—and often prohibitively expensive—requirements governing ambulatory surgical centers (this was referred to as the ASC law). If allowed to take effect, these requirements would cause 3/4 of Texas abortion clinics to close and leave just 10 clinics to serve over 5 million women.
The requirements were struck down by the district court, reinstated by the Fifth Circuit, and temporarily blocked by the Supreme Court, which is now hearing the merits of the challenge.
Based on my review of the transcript, here are ten observations about the argument:
1. Justice Ginsburg opened the argument with a procedural curveball.
With the law’s challengers going first, most people presumably expected the argument to start with sharp questioning from, say, Justice Alito. Instead, the Center for Reproductive Rights’s Stephanie Toti got just two sentences out before she was interrupted by Justice Ginsburg. The former civil-procedure professor wanted to know about claim preclusion: in particular, whether the challenges, in this case, to the admitting-privileges requirement were foreclosed by the plaintiffs’ unsuccesful facial challenge, in an earlier case, to those same requirements. This and other procedural inquiries dominated Toti’s argument.
2. All roads lead to the record.
Several of the conservative Justices interrogated Toti about the proof that the law’s requirements would cause clinics to close. Toti provided some infromation about how laws would affect clinics, but also repeatedly alluded to more detailed information that she would supply during her rebuttal. This approach may have prolonged the questioning on this point:
A new Vox survey reveals that a majority of registered voters underestimate the rate of abortion, and that the abortion rate is most likely to be understimated by men, college graduates, and those with higher salaries:
More educated and higher-income Americans are especially likely to believe that abortion is rare.
For example, 54 percent of Americans without a college degree underestimate abortion rates, compared with 70 percent of those with graduate degrees. And 51 percent of those earning less than $50,000 underestimate the frequency of abortion, compared with 69 percent of those earning more than $175,000.
The split happens when you look at gender, too. Women would near certainly have more experience with abortion than men. Our poll shows that 67 percent of men underestimate the frequency of abortion, compared with 57 percent of women.
I would like to take this opportunity to wish you all a very happy, healthy and peaceful year 2016.
Reaching the end of 2015, I cannot stop thinking about the year that has passed. Being a native German, living in Sweden and commuting every week over the bridge to Copenhagen in Denmark – most recently with thousands of terrified refugees and border controls on the way back to Sweden – this year has left me with much astonishment and concern about the state of the European Union and our global situation. It appears to me as if the EU and other global leaders have focused far too much on tiny technicalities, while leaving the bigger issues untouched and disregarding crucial lessons of history. There are so many things that we must learn from 2015’s terrible events and alarming decisions, but also from the hope-giving agreements, incidents and initiatives. For me one of the most important take-aways is that everything is connected and that sustainable, realistic solutions not only require immediate actions. In my view, we need to think about long-term strategies both in more detail and from a bigger perspective. Due to the complexity of our most pressing problems this is a colossal task. It demands more knowledge, better communications, more collaboration and a more effective coordination of the considerable skills and different competences that are already out there.
“Sex After 50 at the Supreme Court” is the title of today’s Turkey Day column by the peerless Linda Greenhouse. She takes a saucy look at upcoming Supreme Court cases on contraception and abortion and the role of religion in motivating restrictions on reproductive rights and health.
Here’s a taste:
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.
Gobble up the whole column here. Happy Thanksgiving!
With the Supreme Court ready to review the constitutionality of restrictions on abortion providers in Texas, new research from the Texas Policy Evaluation Project suggests that between 100,000–240,000 Texas women ages 18 to 49 have attempted to terminate a pregnancy on their own (that is, without help from a licensed medical professional). According to the authors, “the populations we found to be most familiar with abortion self-induction are among those that have been most directly affected by the closure of abortion clinics in the state.” As a result, the study predicts, “abortion self-induction will increase as clinic-based care becomes more difficult to access.”
This data reinforces that efforts to ban, restrict, or otherwise interfere with efforts to obtain legal abortion don’t stop abortion—they often push women to obtain abortion by other means that are far more dangerous.
Those consequences, as it turns out, are what led one conservative Supreme Court Justice, Lewis Powell, to support abortion rights. Justice Powell was no right-to-privacy diehard; he infamously cast the deciding vote upholding the Georgia sodomy ban in Bowers v. Hardwick. But when it came to reproductive freedom, Justice Powell joined the majority opinion in Roe v. Wade and continued to support abortion rights while sitting on the Court.
According to Justice Powell’s biographer, an incident from earlier in his career reinforced that if women lacked access to legal abortion, the result would be unsafe, off-the-books procedures:
Today the Supreme Court granted review in seven challenges to the accommodation offered to those with religious objections to the Affordable Care Act’s contraceptive coverage regulations. I won’t rehash my earlierposts about why I (and seven of eight federal appeals courts) think that these challenges, brought under the Religious Freedom Restoration Act, are bunk. For now, a few observations about the cases and today’s cert grants:
1. These cases involve challenges to a religious accommodation, not the coverage requirement itself. In Burwell v. Hobby Lobby Stores, the Supreme Court said that the government couldn’t enforce the contraceptive coverage regulations against for-profit corporations with religious objections. The Court pointed to a less-restrictive alternative: the accommodation, offered to nonprofit organizations, through which the organization submits a written objection and government arranges for the objector’s insurance company or plan administrator to provide the coverage at no cost to either the objector or its employees. The plaintiffs in these cases are challenging the accommodation itself. By analogy, this is like a conscientious objector challenging the process for opting out of the draft.
2. Oddly enough, Hobby Lobby didn’t officially resolve RFRA challenges to the accommodation. You might think that since the Supreme Court’s decision in Hobby Lobby pointed to the accommodation as the less-restrictive alternative, then the Court must have also made clear that the accommodation itself complied with RFRA. But the majority opinion did not do so. Instead, after pointing to the accommodation as a less-restrictive alternative, the majority said, “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”
3. And/But: Justice Kennedy, the deciding vote in Hobby Lobby, suggested more clearly that the accommodation complies with RFRA. Although he joined the majority opinion, Justice Kennedy also wrote separately and appeared to bless the accommodation. Here’s what he said:
“That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.”
“Yet neither may that same [free exercise] unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”
If Justice Kennedy holds to his view in Hobby Lobby, then the plaintiffs in these cases will probably lose.
4. Although the plaintiffs in these cases are nonprofit organizations, the result will affect employees of for-profit corporations. As instructed by the Supreme Court in Hobby Lobby, the government extended the accommodation to closely held for-profit corporations such as Hobby Lobby. But neither Hobby Lobby nor the other for-profit plaintiffs have said that they will accept the accommodation, and most of them are represented by the same organizations representing the nonprofit challengers to the accommodation. So if the Supreme Court doesn’t uphold the accommodation as applied to nonprofit organizations, employees of objecting for-profit corporations will almost certainly go entirely without contraceptive coverage as well.
5. “[Y]ou are not entitled to your own facts….” Today the Becket Fund, which represents Little Sisters of the Poor and several other plaintiffs, issued a press release entitled “High Court to decide if Government can force nuns to provide contraceptives.” This is false—full stop. Under the accommodation, contraceptives are provided by the employer’s insurance company or plan administrator; employers aren’t paying for the insurance coverage, let alone handing out the insurance coverage, let alone handing out contraceptives themselves. Whether or not you think that the accommodation resolves employers’ religious objections, it is simply not true that—as a matter of fact—objecting nuns are required “to provide contraceptives.” (This is not, I should add, the first time that the Becket Fund has made this claim in a press release.) I will be curious to see whether Becket Fund repeats this claim in its briefs to the Court.