Fifty years after the Supreme Court, in Griswold v. Connecticut, granted married couples the constitutional right to use birth control, here we are back at the court, still wrestling with contraception. Am I the only one who finds this remarkable?
It’s less startling to find abortion also back at the court, given that we’ve never stopped debating abortion even as the birth control wars receded into a dimly remembered past. It’s the conjunction of the two issues that deserves more notice than it has received. Maybe it’s just a coincidence of timing that they now sit side-by-side on the court’s docket, in cases the justices accepted on consecutive Fridays earlier this month for argument and decision later in the current term.
But it feels like more than mere coincidence. 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. It’s from that perspective, in the waning weeks of Griswold’s anniversary year, that I propose to consider these two crucially important cases.
The birth-control case — actually seven separate appeals that the court has consolidated under the name Zubik v. Burwell — 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. All 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. The abortion case, Whole Woman’s Health v. Cole, is an appeal by abortion clinics in Texas from a decision upholding state regulations that invoke women’s health as a pretext for destroying the state’s abortion-provider infrastructure.
There are obvious differences between the two cases, which I’ve written about in some detail recently. The contraception case invokes not the Constitution but the Religious Freedom Restoration Act, a 1993 law aimed at shielding religious practices from federal laws that impose on them a “substantial burden” without sufficient justification. Constitutional interpretation will govern the Texas case, in which the clinics are challenging the regulations as the kind of “undue burden” that the Supreme Court’s 1992 decision in Planned Parenthood v. Casey prohibited: a regulation that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
But here’s what’s the same: sex, women and religion.
It’s less startling to find abortion also back at the court, given that we’ve never stopped debating abortion even as the birth control wars receded into a dimly remembered past. It’s the conjunction of the two issues that deserves more notice than it has received. Maybe it’s just a coincidence of timing that they now sit side-by-side on the court’s docket, in cases the justices accepted on consecutive Fridays earlier this month for argument and decision later in the current term.
But it feels like more than mere coincidence. 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. It’s from that perspective, in the waning weeks of Griswold’s anniversary year, that I propose to consider these two crucially important cases.The birth-control case — actually seven separate appeals that the court has consolidated under the name Zubik v. Burwell — 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. All 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. The abortion case, Whole Woman’s Health v. Cole, is an appeal by abortion clinics in Texas from a decision upholding state regulations that invoke women’s health as a pretext for destroying the state’s abortion-provider infrastructure.
There are obvious differences between the two cases, which I’ve written about in some detail recently. The contraception case invokes not the Constitution but the Religious Freedom Restoration Act, a 1993 law aimed at shielding religious practices from federal laws that impose on them a “substantial burden” without sufficient justification. Constitutional interpretation will govern the Texas case, in which the clinics are challenging the regulations as the kind of “undue burden” that the Supreme Court’s 1992 decision in Planned Parenthood v. Casey prohibited: a regulation that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
But here’s what’s the same: sex, women and religion.
by Linda Greenhouse, NY Times | Read more:
Image: Jabin Botsford/The New York Times
