Less than a year from now, Roe v. Wade could be all-but-dead. Employers, health providers, and pharmacists could gain sweeping new power to impose their religious views on women who use birth control. And elected lawmakers could even be stripped of their power to correct Supreme Court decisions that read religious objectors’ rights too expansively. Simply put, the Supreme Court term that begins next month is likely to do more to determine how much control women have over their own bodies than any term since the justices decided Roe v. Wade.
The justices have not decided a major abortion case since 2007’s Gonzales v. Carhart, a decision reproductive health advocates frequently quote with disgust for its pronouncement that restrictions on the right to choose can be justified, at least in part, because “some women come to regret their choice to abort the infant life they once created and sustained.” Even more significantly, however, Carhart offered a way forward to state lawmakers eager to shut down abortion clinics in their state.
State and federal lawmakers, according to Justice Anthony Kennedy’s opinion for the Court in Carhart, enjoy “wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” a holding that placed Kennedy wildly at odds with the Court’s original decision in Roe v. Wade. That opinion held, at least in early stages of the pregnancy, that “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Now, however, much of this judgment has been transferred to state lawmakers.
It’s an open question just how much discretion the Supreme Court is prepared to transfer to state lawmakers, but legislators in many states have pushed the limits to see how far they can go. One of the most common tactics is sham health laws that, at least on the surface, appear to be efforts to protect women’s health — but that do little to advance such health concerns while simultaneously imposing strict limits on abortion access. In Texas, for example, a 2013 law requires doctors to have admitting privileges in a nearby hospital before they can perform abortions, and it also imposes expensive architectural and other requirements on clinics that they must comply with in order to operate.
The admitting privileges provision is opposed by leading health provider groups, including the American Congress of Obstetricians and Gynecologists and the Texas Hospital Association — the latter explains that “thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges” and that hospitals are prepared to provide emergency care to women who experience complications during an abortion regardless of whether the abortion doctor has admitting privileges. Similarly, the architectural requirements imposed on abortion clinics have little bearing on the work that goes on in many clinics. The Texas law, for example, requires abortion clinics to meet the standards established for what are known as “ambulatory surgical centers,” even though many clinics only provide medication abortions and do not perform surgeries at all.
What these two requirements do accomplish, however, is that they are expected to shut down most of the state’s clinics if they are allowed to take effect. Before the 2013 law, Texas had 40 licensed abortion clinics. If it is allowed to take full effect, only about seven or eight of these clinics are expected to be able to remain open.
The conservative United States Court of Appeals for the Fifth Circuit has largely stood behind the law, relying heavily on Carhart‘s language about deference to lawmakers. Under the Fifth Circuit’s framework, “medical uncertainty underlying a statute is for resolution by legislatures, not the courts” even when a sham health law is challenged and there’s little real “uncertainty” about the law’s impact among health experts who do not have a stake in abortion politics. If this legal standard is embraced by the Supreme Court, it is unlikely that much, if any, of Roe will survive — as states will be free to restrict abortion so long as they are creative enough to come up with some sort of explanation for the restriction that claims it will have some positive impact on women’s health.
It’s not entirely clear that there are five votes ready to embrace this standard, however. Justice Kennedy, the author of Carhart, provided the fifth vote to temporarily block much of the Texas law while the Court is deciding whether to take the case. It is very likely that the justices will take the case, although much more uncertain how they will decide the case on the merits.
Hobby Lobby Part II
As a matter of legal doctrine, the Court’s 2014 decision in Burwell v Hobby Lobby was an earthquake. In that case, the Court turned its back on its longstanding view that, in Justice Ruth Bader Ginsburg’s words, “accommodations to religious beliefs or observances . . . must not significantly impinge on the interests of third parties.” Thanks to Hobby Lobby, religious objectors gained a new power to use their faith to diminish the rights of others.
As a practical matter, however, it remains unclear just how deeply Hobby Lobby will cut into women’s ability to obtain birth control coverage. That’s because the Hobby Lobby opinion itself strongly suggested that the Obama administration still has plenty of tools at his disposal to ensure that working women’s health plans cover birth control.
Hobby Lobby held that religious objectors could exempt themselves from federal rules requiring them to include birth control coverage in the health plans they offer their employees. Yet it also implied that an alternative method — where objectors inform the federal government of their objection and then the government arranges with the objector’s insurance administrator to ensure that the objector’s employees have a separate plan that covers birth control — would survive legal scrutiny. This alternative method, according to Justice Samuel Alito’s opinion, “achieves all of the Government’s aims while providing greater respect for religious liberty.”
The overwhelming majority of courts of appeals to consider this alternative method have held that religious objectors can be required to comply with the very minimal obligations imposed on them — they simply have to fill out a form identifying their insurance administrator and stating that they wish to be exempt from the law on religious grounds. Last week, however, a panel of the conservative United States Court of Appeals for the Eighth Circuit became the only federal appeals court in the country to side with religious objectors to the fill-out-the-form option. Now that one federal appeals court has broken from the pack, it is all but certain that this case will be heard by the Supreme Court.
Once again, however, the outcome in this case is uncertain and will likely come down to Justice Kennedy. Alito, the author of Hobby Lobby has positioned himself as a culture warrior eager to give religious conservatives sweeping new powers to ignore the law — even when they wish to engage in anti-gay discrimination. Four days after Hobby Lobby, moreover, the Court handed down a temporary order which seemed to back off from its seeming endorsement of the fill-out-the-form opinion. In dissent, Justice Sonia Sotomayor scolded her colleagues for switching gears so quickly. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”
Nevertheless, Kennedy also penned a concurring opinion in Hobby Lobby indicating that he was not fully on board with Alito’s culture war. In that opinion, Kennedy spoke at length about how the fill-out-the-form option offers an alternative method of providing birth control that justifies cutting off another method in workplaces led by someone with idiosyncratic religious beliefs. He also indicated that he might vote differently in a future case where it is “more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.”
The Big Power Grab
It is extraordinarily likely that the Supreme Court will take up a sham health law case — most likely one involving the Texas law — as well as one of the fill-out-the-form cases during the term that begins the first Monday in October. A third case is less likely to be decided by the justices, although the possibility that the Court will take this case should not be ruled out. Stormans v. Wiesman concerns a Washington law that permits individual pharmacists to refuse to fill a particular prescription “so long as another pharmacist working for the pharmacy provides timely delivery,” but that does not generally allow the pharmacy itself to refuse a prescription “even if the owner of the pharmacy has a religious objection.” A pharmacy sued, claiming that its owners should have the right to refuse to fill many birth control prescriptions.
Under existing law, this claim is exceptionally weak. When a religious objector challenges a federal law or regulation, as was the case in Hobby Lobby, the case is governed by the Religious Freedom Restoration Act (RFRA), which expands religious liberty beyond the minimum requirements set by the Constitution. Stormans, however, challenges a state law — and challenges to state laws are governed by a 1990 Supreme Court decision which held that the Constitution “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
Thus, so long as the Washington law applies equally to religious objectors and non-religious objectors alike, the law is constitutional.
The history of religious liberty law is somewhat fraught, and it suggests a path forward if there are five justices who want to rule in favor of the pharmacy in Stormans. Prior to the Court’s 1990 decision, the justices applied a legal standard that was more protective of religious rights than the “neutral law of general applicability” standard articulated in that case. RFRA was intended to restore the pre-1990 standard, which, despite being more protective than the rule handed down in 1990, also prevented religious objectors from wielding their objections in order to reduce the rights of third parties.
Hobby Lobby‘s innovation was that it eliminated — or, at least, significantly reduced — the protections for third parties that were implicit in RFRA. If the justices take the Stormans case, they could potentially write Hobby Lobby‘s standard into the Constitution itself. That could give sweeping rights to religious objectors who do not want to comply with state law, while also making it impossible for Congress to roll back the Hobby Lobby decision through ordinary legislation.
If the plaintiffs prevail in Stormans, moreover, that decision is likely to have implications far beyond birth control. As the record in that case shows, pharmacy owners may also assert religious objections to diverse prescriptions such as “medications for HIV patients . . . diabetic syringes, insulin, HIV-related medications, and Valium.”