Letters & Op-Eds 2016

Catholics for Choice: Faith Support for Reproductive Health and Religious Liberty Before the Court

March promises to be a momentous month in what is likely to be an historic year for reproductive rights in the courts. Most will have heard that SCOTUS is reviewing two crucial cases this term. On Wednesday March 2, the justices heard oral arguments for Whole Woman’s Health v. Hellerstedt, and in a few weeks, on March 23, they will hear arguments in Zubik v. Burwell. Both cases have the potential to significantly impact access to reproductive health services and the way we protect religious liberty in this country for years to come.

Whole Woman’s Health v. Hellerstedt

At stake in this case is access to abortion, long singled out for separate and onerous regulations that effectively eliminate the option for many, especially women with few economic resources, those from rural areas, younger women and women of color. The case brought by a number of women’s health providers in Texas, challenges a multi-faceted law, HB 2, because it mirrors a number of targeted regulations of abortion providers (TRAP laws). The law has already forced more than half of the clinics providing abortion services in the state to shut their doors. Before HB 2 was enacted, there were more than 40 clinics providing abortion care; now there are fewer than 20. If the Supreme Court fails to stop this law, there will be just 10 clinics left to serve 5.4 million Texas women of reproductive age. The proponents of the legislation claim that the regulations protect women’s health and safety, but that is malarkey. HB 2 does nothing to improve safety or health. It just creates higher costs, longer delays and extra steps for women seeking abortions. In the process, the law chides women for their decision to exercise their individual conscience and constitutional right to end a pregnancy.

People from a wide diversity of faith traditions reject these abortion restrictions. They trust women and their moral capacity to make decisions about their fertility and health. Catholics in large majorities agree; these laws hurt women rather than protect them. It’s not surprising when you consider Catholic women seek abortions at the same rate as other women. A full 99 percent of sexually-active Catholic women have used a form of birth control that is disapproved of by the bishops. Women of all faiths need fewer barriers—not more—in order to fully exercise their moral agency. Closing clinics makes it difficult or impossible for a woman who has decided to end a pregnancy to get the safe, legal, high-quality care she needs.

Zubik v. Burwell

While this case has not garnered the same degree of attention, its effects could be equally sweeping. At stake is not only access to contraceptive coverage for many, perhaps hundreds of thousands of women, but it also touches so many other areas where questions of religious liberty intersect. Zubik is a consolidation of seven cases that have contested the accommodation that the Obama administration set forth allowing employees at religiously-affiliated entities to avail themselves of the contraceptive benefit under the Affordable Care Act (ACA). The accommodation provided these religiously-affiliated employers that object to contraception a means to avoid paying for coverage by simply notifying either the insurance company (or the government) of the objection.

The plaintiffs in these cases, including Priests for Life, Southern Nazarene University and Little Sisters of the Poor, claim that filing the form or other declaration indicating their objection to the contraceptive coverage with the government violates their religious freedom under the Religious Freedom Restoration Act (RFRA). Boiled down, they want a complete exemption, which means leaving their employees without access to critical health services entirely. It is clear that this litigation is actually about controlling the behavior of people who work for them; about imposing one set of moral views on others, even if it is harmful and disregards the will of individuals who work for those institutions.

Many organizations filed amicus briefs urging the court to reject the plaintiffs’ claim that the accommodation violates their religious freedom from a variety of perspectives contrary to that of the plaintiffs. More than 30 members of the Coalition for Liberty & Justice (CLJ) joined various briefs, and eight CLJ members led briefs, including Catholics for Choice.

The amicus brief led by Catholics for Choice and joined by nine other Catholic organizations asked the court to consider the religious freedom of the Catholic workers, employees, students and individuals at religiously-affiliated organizations, schools and institutions. These individuals’ interests, consciences and health would be trumped by powerful institutions should the plaintiffs prevail.

The Amici believe as a matter of their deep Catholic faith that all employees are equally entitled to coverage of contraceptive services under the ACA, no matter where they work or what they believe. They also believe that the least restrictive means of advancing the critical ideals of religious liberty and women’s equality would be to require all employers, including churches and their integrated auxiliaries, to provide access to contraception.

The brief also argued that the existing church exemption—which the plaintiffs argue should be expanded to include many more organizations, businesses and individuals—does not serve the compelling interest of the government to protect and provide the contraceptive benefit equally to the employees and their dependents.

Completely excluding any woman from equal access to contraception undermines the government’s equally compelling interests of protecting religious liberty and advancing women’s equality. Any exemption draws arbitrary lines between those women whose consciences are worthy of respect and those deemed unworthy.

Finally, the brief argues that the petitioners’ objection to the accommodation violates the Establishment Clause of the First Amendment to the Constitution, which prohibits “an unlawful fostering of religion” by the government. Past rulings have found that:

A religious exemption may violate the establishment clause in three different situations: if it does not take account of the burden of the exemption on nonbeneficiaries, if it is not applied neutrally among faiths, or if it gives an ‘unyielding’ preference to religion.

The petitioners’ claims violate all three standards.

Why Do These Cases Matter?

So what does this mean? Whole Woman’s Health is the most important abortion case in two decades, and women’s access to abortion care in this nation could hinge on the decision. HB 2 limited or closed the majority of providers in Texas. Other states will, and are, following suit by drafting similar TRAP laws. Should the law be allowed to stand, women’s ability to access safe, legal abortion care is on the line.

The future of what, who and how religious liberty is protected hangs in the balance with the Zubik case.Zubik threatens to unravel whether or not individual freedom can continue to exist when large religiously-affiliated entities disagree. It would pave the way for government-sponsored pandering to the religious dictates of powerful institutions at the expense of the religious liberty of women, workers and LGBTQ individuals. Should the plaintiffs prevail, the court may very well decide to trade the religious liberty of these and many others for the religious dictates of the influential. It is utterly outrageous to suggest that individuals could have their health, interests, moral agency and conscience subjugated to the religious beliefs of their employers, but that is exactly what is at stake.

In the meantime, we await the Court’s decisions in these two crucial cases and vow to continue ensuring that individuals are able to get the healthcare and services they need, no matter their faith, their income or their zip code.

This originally appeared as a post in the Hamilton and Griffin on Rights blog.

Catholics for Choice