Yeah, right . . .
Several Supreme Court cases this term inspire that sarcastic rejoinder. The real agenda driving the cases is religious, not legal.
The two cases — Whole Woman’s Health v. Hellerstedt and Zubik v. Burwell — are challenges to women’s control of their reproductive choices. And, in both cases, women justices brilliantly exposed the hypocrisy and true intentions of the religious conservatives who are trying to inhibit access to health care.
Whole Woman’s Health is a challenge to HB2, a Texas law that established draconian requirements for abortion clinics in Texas, creating a substantial burden on women seeking to exercise their constitutional right to the procedure. The new scheme required clinics to match the regulatory requirements of ambulatory surgical centers, despite no evidence that such standards are necessary. It also required abortion providers to have admitting privileges at accredited hospitals, despite the utter irrelevance of that requirement and the inarguable safety of the procedure. For example, colonoscopy and liposuction are significantly riskier than abortion, yet are subject to no similar regulations. Texas legislators purported to be motivated by a deep commitment to women’s health and safety, but the result was as they intended — an immediate and sharp reduction in the number of clinics in the state.
In oral arguments, it was clear that even the counsel for the state of Texas knew the case was “really” about something else. Justice Ruth Bader Ginsburg trapped him with strategic precision. When attempting to rebut the plaintiff’s claim that a burden was created by virtue of the hundreds of miles a woman would have to travel under the new regime, the counsel for the state argued that no such burden existed. A woman, he boldly stated, could access the procedure at a very convenient clinic just over the border in New Mexico. Oops.
Justice Ginsburg said, “That’s odd that you point to the New Mexico facility.” New Mexico has none of the standards which Texas claims necessary to protect women. She continued, “If that’s (no stringent standards) all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?” In one deft thrust she exposed the true purpose of the legislation: to place a substantial burden in the way of a procedure they believe is sinful in the eyes of their faith.
In Zubik v. Burwell, religious petitioners challenged the provision in the Affordable Care Act that requires preventive care in health insurance policies. Preventive care obviously includes access to contraception, which is designed to, well, prevent things. Religious folks, primarily Catholics, claimed that the requirement to provide contraceptive devices violated their rights under the Religious Freedom Restoration Act (RFRA). OK, responded legislators, we’ll amend the law so you don’t have to directly provide any such thing. Just fill out a form saying you object, and we’ll have an unrelated third party provide contraceptive coverage at no cost to you. No! responded the religious folks. Signing the form still makes us complicit in sin because we know that as a result of our signature, someone, somewhere will use contraception. Avoiding signing a form strikes me as a somewhat obscure form of “religious expression,” but many aspects of religion mystify me.
In this case it was the wondrous Justice Sonia Sotomayor who provided the zinger: “Well . . . why don’t we assume that . . . if the majority (of employees in the religious organization) are part of the religion, that they are not going to buy contraceptives? That’s their religious tenet. And so why are we worried about this case at all?”
This rapier sharp question exposed the illogic of the petitioners’ entire argument: Contraceptive use is a sin only in the eyes of the church (despite the fact that Guttmacher Institute research suggests that more than 90 percent of Catholic women use, at one time in their lives, some form of birth control). Therefore, in order to be complicit in sin, the chain of events triggered by the “form signing” would have to culminate in a woman of faith sinfully using the contraceptive. Sotomayor’s tongue-in-cheek assertion that “they aren’t going to buy contraceptives,” therefore “why are we worried?” exposed the truth. The plaintiffs claim of complicity is either unnecessary, because no woman of their faith would ever commit the sin. Or, their real intent is to inhibit contraceptive use by all women in their employ, religious or not, which seems an entirely undue burden on those who don’t share the faith.
The good news is that these women on the court, in alliance with Justices Kagan and Breyer, are essentially saying, “Yeah, right” as they pull back the curtain on a well-organized campaign to breach the separation between church and state. Make no mistake . . . this religious campaign intends to inhibit the constitutional rights of others and/or to exempt some citizens from their civil obligations by allowing them to make nearly any religious claim, however specious. It is a slippery slope, at the bottom of which lies a government that ceases to effectively function.
These cases accentuate the critical importance of this presidential election. Should Trump, Cruz or Kasich prevail, the next Supreme Court appointment may profoundly change the secular nature of our democratic republic. That alone is reason to actively work for whomever the Democratic Party nominates.
Steve Nelson lives in Sharon and New York City, where he is the head of the Calhoun School, a private school. He can be reached at steve.nelson@calhoun.org.