National Partnership for Women & Families

In the News

NYT Op-Ed: 'Inevitable' That SCOTUS Will Consider Abortion-Rights, Birth Control Cases

"[I]t feels like more than mere coincidence" that the Supreme Court this term will hear both an abortion-rights case and birth control case, Linda Greenhouse writes in a New York Times op-ed.

Greenhouse explains, "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." She continues, "It's from that perspective ... that I propose to consider these two crucially important cases."

Differences, Similarities Between Lawsuits

According to Greenhouse, "The birth-control case ... 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 [PL 111-148]." To claim an accommodation for the ACA requirement, "[a]ll 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," Greenhouse notes.

Meanwhile, "[t]he abortion case, Whole Woman's Health v. Cole, is an appeal by abortion clinics in Texas from a decision upholding state regulations [HB 2] that invoke women's health as a pretext for destroying the state's abortion-provider infrastructure," Greenhouse notes.

"There are obvious differences between the two cases," Greenhouse states. The contraceptive coverage challenge "invokes not the Constitution but the Religious Freedom Restoration Act [PL 103-141]," she notes. Meanwhile, "Constitutional interpretation will govern the Texas case, in which the clinics are challenging the regulations as the kind of 'undue burden'" the court "prohibited" under its 1992 ruling in Planned Parenthood v. Casey, she writes. However, despite those differences, Greenhouse notes that both legal challenges involve "sex, women and religion."

SCOTUS Consideration of Cases 'Inevitable'

Greenhouse points to the Supreme Court's 1965 ruling in Griswold v. Connecticut, which "granted married couples the constitutional right to use birth control" and separated, "as a constitutional matter ... sex from procreation." However, "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," Greenhouse states.

According to Greenhouse, the Obama administration's "refusal to exempt corporations like the privately held, profit-making Hobby Lobby Stores" eventually "led to the Hobby Lobby decision in 2014." Meanwhile, "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," she adds.

The Supreme Court in the Hobby Lobby ruling "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," Greenhouse writes. She explains, "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." According to Greenhouse, "[t]he religious nonprofit plaintiffs in the new cases object" to "simply requesting the accommodation."

Greenhouse continues, "Under [RFRA], 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.'" In the Hobby Lobby ruling, the majority of justices determined "that government's interest in making contraceptives broadly available without cost was compelling" and "that the interest could be served with the necessary precision by offering the opt-out accommodation." According to Greenhouse, Justice Anthony Kennedy in a concurring opinion wrote that "[a]n 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.'"

Greenhouse notes that "Kennedy is the last remaining member of the trio of justices ... responsible for preserving the right to abortion in the Casey decision 23 years ago." According to Greenhouse, Kennedy co-authored the Casey opinion, which "insisted that although the state could express its preference for childbirth over abortion ... women retained the right to choose abortion." She writes, "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."

Greenhouse writes that while the contraceptive coverage lawsuit and the Texas case both clearly deal with sex and women, the third shared trait -- religion -- might not be as obvious. She explains that while "[t]he contraception case is obviously about religion," the Texas challenge "case comes clothed in the state's concern for women's health." Opposition to abortion rights has been conservative "dogma for so long that it's easy to regard the position as simply a natural part of our domestic politics," Greenhouse notes. However, she writes that "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."

Greenhouse points to an opinion by former Justice John Paul Stevens, who discussed the religious basis behind abortion restrictions that Missouri lawmakers "had enacted along with a legislative preamble declaring that 'the life of each human being begins at conception.'" She notes that while the high court in that decision "avoided a ruling on the constitutionality of the preamble," Stevens in a separate opinion blasted the "'theological basis' for the Legislature's position.'" According to Greenhouse, Stevens wrote, "'Our jurisprudence ... 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.'"

Greenhouse contends that "what the Supreme Court may or may not grasp is that it has on its hands ... a struggle over modernity, a battle for the secular state in which women can make their choices and design what Justice [Ruth Bader] 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." Greenhouse concludes, "Seen in that light, the arrival of these two cases on the court's docket was no coincidence. It was inevitable" (Greenhouse, New York Times, 11/26).