April 2020 Church & State Magazine - April 2020

Access Denied: The Supreme Court Is Hearing A New Birth Control Case — Are More Restrictions Ahead?

  Liz Hayes

The U.S. Supreme Court will consider its second reproductive freedom case in as many months when it hears arguments on April 29 in Trump v. Pennsylvania – a case challenging the Trump administration’s rules that would allow employers and universities to use religion to deny workers and students access to birth control coverage.

The other reproductive rights case was heard on March 4. June Medical Services v. Russo involves a challenge to a Louisiana law that requires abortion providers to have medically unnecessary and often impossible-to-obtain admitting privileges at a local hospital.

Reproductive freedom isn’t the only connection between these two cases: Religious freedom is a thread connecting them as well.

The tie to religious freedom is more obvious in the birth control access case – the final policy issued by the Trump administration in November 2018 grants employers and universities the right to cite religious or moral objections in order to exclude birth control from their employee and student health insurance policies.

While the Louisiana law being challenged in the abortion rights case does not explicitly mention religion, its sponsors and supporters have made clear that using the government to impose their religious beliefs on others was their intention.

“From day one of running in my district, I was very clear that … my goal in this office was to do the will of God. This is one of those issues where I’m standing with God,” said Louisiana state Sen. Katrina Jackson (D-Monroe) in a December story in The Federalist. “My concern is not who I offend based on their overall national view of a party or a candidate. My concern is always, number one, that I not offend God.”

Jackson introduced the clinic shutdown bill when she was a state representative. It was signed into law in 2014 and upheld by federal courts, even though an identical Texas law was struck down as unconstitutional by the U.S. Supreme Court in 2016. But that was before President Donald Trump appointed to the bench Neil Gorsuch and Brett Kavanaugh – two justices with records of hostility toward both reproductive and religious freedom.

In January, Jackson spoke at an anti-abortion event and told the crowd that ending legal abortion “will happen through prayer. It will happen that people come together and really say, ‘This is no longer a party issue, this is a God issue; this is a United States issue…’ And I believe this is the turning point.”

Trump likewise framed abortion and reproductive freedom in biblical terms when he became the first sitting president to address the anti-abortion March For Life on the National Mall in Washington, D.C., in January: “All of us here today understand an eternal truth: Every child is a precious and sacred gift from God. Together we must protect, cherish and defend the dignity and the sanctity of every human life.”

Trump has repeatedly pandered to his Christian nationalist base of supporters by introducing and voicing his support for policies that would misuse religious freedom to harm others, including women, LGBTQ people and religious minorities.

In the reproductive rights sphere, in addition to Trump’s proposed rules to restrict birth control access, he also introduced the Denial of Care Rule last May. It would invite any health care worker to use religion as the basis for denying care to any patient. This rule, which has also been blocked by federal courts, is targeted at restricting access to reproductive care and health care for LGBTQ people, but it is so broad that everyone is at risk.

Americans United is fighting both the birth control and Denial of Care Rule in court. In fact, the day before the U.S. Supreme Court agreed to hear the Trump v. Pennsylvania birth control case, a federal judge in Indiana allowed a similar case brought by AU, the Center for Reproductive Rights, the National Women’s Law Center and the law firms Fried Frank and Macey Swanson to proceed.

AU’s case, Irish 4 Reproductive Health v. HHS, was filed on behalf of University of Notre Dame students who have lost access to birth control as a result of both the administration’s birth control rules and the government’s illegal backdoor agreement with Notre Dame to settle a previous lawsuit over birth control insurance coverage. Although the government similarly reached a deal with more than 70 other religiously affiliated organizations to end their lawsuits, AU’s case is the only pending litigation challenging one of those collusive settlement agreements.

U.S. District Judge Philip P. Simon in Indiana declined a request by the government and Notre Dame to dismiss the case, and didn’t buy their argument that the rules and the settlement agreement are lawful: “[I]t seems plain that the Rules and Settlement Agreement are directly contrary to the obvious intent of the Women’s Health Amendment: to ensure access to contraceptive care,” he wrote in his order.

“Federal courts in Pennsylvania, California and just yesterday in our case in Indiana have ruled against this discriminatory policy,” Americans United President and CEO Rachel Laser said in January in response to Simon’s ruling and the Supreme Court’s decision to hear the related Pennsylvania case. “As a reminder, the Affordable Care Act guarantees employees and students the right to contraceptive coverage. The religious beliefs of their bosses and university officials cannot deny them this right. That’s what church-state separation guarantees, and that’s what we’ll continue to fight for in court.

“The Supreme Court should affirm that it is unconstitutional for the Trump administration to misuse religious freedom to block employees’ and students’ access to birth control,” Laser added.

Laser has repeatedly highlighted the connection between the surge of attacks on reproductive freedom and the Christian nationalist efforts to undermine church-state separation. In February, she told The Guardian, “These abortion bills are a key part of a larger agenda to codify a far-right evangelical Christian America.”

Laser made a similar argument in March when she appeared on former Trump press secretary Sean Spicer’s new cable television show, “Spicer & Co.” Laser was asked to debate Cath­erine Glenn Foster, the leader of the anti-abortion group Americans United for Life, the day after the oral argument in the June Medical Services abortion access case.

Laser, who was in the courtroom to hear the arguments, explained for Spicer how religious freedom factored into the issue.

“This case is about whether women can have the right to make decisions about their health care, about their birth control, about their number of children that they want to have in their lives. And it’s also about religious freedom,” Laser said. “Attacks on reproductive freedom are attacks on religious freedom because … in this country, we all have the freedom to live as our true selves and to be treated equally by our government no matter what our belief system, or even if we don’t believe. That’s the first 16 words of our First Amendment.”

In the Pennsylvania birth control case, the U.S. 3rd Circuit Court of  Appeals didn’t buy the Trump administration’s erroneous claims that religious freedom justified the government’s giving preference to certain religious beliefs, especially when that preference causes harm to people who rely on their access to affordable reproductive health care.

Trump’s birth control rules “would impose an undue burden on nonbeneficiaries – the female employees who will lose coverage for contraceptive care,” wrote U.S. Circuit Judge Patty Shwartz in the 3rd Circuit’s unanimous opinion. “The [administration] downplayed this burden on women, contradicting Congress’s mandate that women be provided contraceptive coverage.”

The 3rd Circuit upheld the district court’s injunction blocking the rules from going into effect. The Trump administration was joined by the Pittsburgh-based Little Sisters of the Poor Saints Peter and Paul Home in asking the U.S. Supreme Court to hear the case.

The Little Sisters of the Poor, which is represented by the Religious Right legal group The Becket Fund for Religious Liberty, gained notoriety by suing the Obama administration over the Affordable Care Act’s birth control benefit; that case was resolved by one of the Trump administration’s backdoor settlements.

Trump and members of his administration have repeatedly touted their efforts to side with the Little Sisters of the Poor. Trump was joined at the White House by members of the religious order during his May 2017 National Day of Prayer executive order presentation that laid the groundwork for many of his assaults on religious freedom, including the birth control rules.

“With this executive order, we are ending the attacks on your religious liberty, and we are proudly reaffirming America’s leadership role as a nation that protects religious freedom for everyone,” Trump said.

But Americans United has repeatedly shown that, rather than protecting religious freedom for everyone, the Trump administration is granting religious privileges to a select few and taking away constitutionally promised freedom of conscience for all of us.

“In this country, the question is: ‘Who should be making decisions [about reproductive freedom]?’” Laser said during her television appearance with Spicer. “Should it be politicians, should it be religious leaders, should it be women? I trust women to make those decisions.”  

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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