In August 2021, the U.S. Department of Defense (DoD) put in place requirements for service members to receive the COVID-19 vaccine. Litigation has since ensued over the military branches’ restrictive approach to religious exemptions to vaccination.
On March 25, the U.S. Supreme Court weighed into one such case: the Court granted the government’s request for a partial stay to allow the Navy to continue to use vaccination status in making deployment and assignment decisions while the litigation proceeds.
2020 has been a notable year for reproductive rights, with the Supreme Court deciding June Medical Services v. Russo, and the COVID-19 pandemic affecting access to abortion, sexual health, and reproductive health services.
Drawing lessons from June Medical Services provides the African human rights system with an opportunity not to affirm what it has in common with the U.S., but rather to uphold its own approach and articulate the jurisprudence that sets it apart.
The U.S. regulates abortion primarily through its Supreme Court using jurisprudence which frames abortion as a right implied in the constitutional right to privacy.
On the other side of the comparison, the African human rights system frames abortion as a human right that transcends national borders in the African region. By “human rights system,” I am referring to the regional system founded under the African Charter on Human and Peoples’ Rights (the African Charter) and its supplementary treaties, especially the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol).
In her latest column, Linda Greenhouse predicts that the Supreme Court’s order in Zubik v. Burwell will not produce the desired happy compromise between the government and the religious organizations who object to the government’s arranging for their students and staff to receive contraceptive coverage from third parties. Towards the end, Greenhouse also describes how the objectors have inaccurately insisted that these cases are about nuns and only nuns—ignoring the dozens of other plaintiffs whose students and staff number in the tens of thousands—and how legal commentators (some of whom should know better) have gone along:
[T]here is a widespread misunderstanding that the case is about nuns, specifically the Little Sisters of the Poor, a religious order whose mission is to run nursing homes for the elderly poor. Commentary following last week’s decision perpetuated this misunderstanding. “Surely the Obama administration could find a way to provide contraception to women without involving a group of Catholic nuns,” Ramesh Ponneru, a senior editor of National Review, wrote in a Bloomberg News post titled “The Culture War Obama Didn’t Have to Wage.” Richard W. Garnett, a law professor at the University of Notre Dame, wrote on Scotusblog that the Obama administration had “aggressively and unlawfully overreached” in its “strange insistence that a community of nuns who take vows of poverty and care for the elderly poor must serve as a vehicle for delivering free contraception to their employees.” In a Wall Street Journal column titled “Big Win for Little Sisters,” William McGurn wrote that “though it was more a TKO than a straight-up ruling, the Little Sisters prevailed at the Supreme Court Monday in their fight against the Obamacare contraceptive mandate.”
This single-minded focus on Little Sisters of the Poor—which itself employs hundreds of people of different religious faiths in multiple states—overlooked the tens of thousands of women who will lose contraceptive coverage if the objectors prevail:
By my count, the Little Sisters of the Poor (who, as I’ve noted before, advertise themselves as equal-opportunity employers in the nursing home enterprise) are only one of 30 petitioners in the seven Supreme Court cases. The other 29 include Catholic and Baptist colleges, Catholic high schools, individual bishops, two chapters of Catholic Charities, other charities, and several individuals.
If anything, there are more objectors and more affected women than even Greenhouse suggests.
In a unanimous, unsigned order hailed as “an almost hilariously brazen punt,” the Supreme Court sent Zubik v. Burwell and the other contraception cases back to the lower courts for further consideration. The order states that, in light of the supplemental briefs submitted at the Court’s request, the parties should have “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”
That, of course, describes the current accommodation, which the Court in 2014 touted as a compromise that protected women’s interests while relieving religious objectors’ of any burdens created by the previous requirement that they provide and pay for the coverage themselves. But the Court, likely split 4–4 on whether even that accommodation complies with the Religious Freedom Restoration Act, wants the parties to see if they can compromise further without subjecting women to second-class care.
These cases will almost certainly return to the Supreme Court, which may or may not have nine members by that time. But in the meantime, things are up in the air—especially for affected women:
1. The Court decided—nothing. Although objectors’ lawyers claimed victory, even the most nimble of advocates would struggle to identify an actual victory from an order that “expresses no view on the merits of the cases.” Lest any misunderstanding persist, the Court reiterated that it took no position on any of the underlying legal questions:
In particular, the court does not decide  whether petitioners’ religious exercise has been substantially burdened,  whether the Government has a compelling interest, or  whether the current regulations are the least restrictive means of serving that interest.
Those questions will be decided again by the Courts of Appeals, all but one of which has already ruled against the objectors. A victory this is not.
Commentators have been weighing in since the Supreme Court decided it would hear King v. Burwell, the case challenging the ability of millions of Americans to receive subsidies to purchase health insurance on federally operated Exchanges under the ACA. Debate swirls over whether a decision striking down these subsidies will gut the ACA or not, but at the very least a ruling in favor of the petitioners would have grave consequences for ACA the and the millions that currently receive these subsidies.
There is, however, more at stake in the King case than the ACA. If the Court takes this opportunity to cut down the ACA, it does so at the cost of the principle of separation of powers and the Supreme Court’s institutional legitimacy and credibility.
The question in King will be resolved under the Chevron framework, which provides that if a statutory provision is ambiguous, then the court must defer to the agency’s interpretation, so long as it is permissible. Reasonable, learned minds have been disagreeing on the meaning of the statutory provision. As Adrian Vermeule has pointed out, of the 9 federal judges that have reviewed this question, 6 have agreed with the government’s interpretation or concluded the statute is ambiguous, and 3 have concluded that the statute unambiguously precludes subsidies. This type of judicial disagreement is evidence itself of statutory ambiguity. Read More
Since the likelihood is that many readers of this blog will be asked to comment when the Supreme Court, some time this week, announces its decision in Hobby Lobby and Conestoga Wood Specialty cases here’s a brief refresher and some links. The cases are challenges to the Affordable Care Act’s requirement that employers who choose to offer health insurance to their employees must provide policies that include ten essential benefits-including contraception. The U.S. Supreme Court has heard oral arguments and read the briefs—it’s likely that whatever opinion is issued will reflect at least some of the arguments presented to the Court.
This case is about the Affordable Care Act’s requirement that employers who offer their employees health insurance must include ten essential benefits, including contraception. Hobby Lobby and Conestoga Wood are privately held, for-profit companies whose owners have sincerely held religious objections to providing four specific kinds of contraception. They believe these contraceptives terminate rather than prevent pregnancy. Many religious organizations and companies have gotten exemptions to these requirements, but this case considers whether private, for-profit companies should qualify as well.
The cases raise three major issues:
Does the Religious Freedom Restoration Act apply to corporations even though it uses the word “person?” (Can companies have religious beliefs?)
Is providing insurance that covers birth control a “substantial burden?” on these two company’s’ religious beliefs?
Does the government have a compelling reason for requiring companies that provide insurance to have it cover birth control?