Over the last two weeks, the United States Supreme Court has granted review in two sets of cases that will bring the abortion issue to the front and center of the opinions likely to be issued in May and June of 2016 and thus into the presidential campaign. How the Supreme Court addresses these issues will determine who sees a need to win the election to protect their rights.
The first set of cases involve the Affordable Care Act and the Religious Freedom Restoration Act. In 2014, the Supreme Court decided to view the coverage requirements of the Affordable Care Act from the perspective of the employer paying for coverage rather than from the employee deciding how to use that coverage. Viewing the scope of coverage from the perspective of the employer, the Supreme Court decided that a mandate to purchase coverage which included benefits for contraceptives would substantially infringe on the religious freedom of corporation which had religious objections to such coverage. (Many of these organizations express the religious belief that certain contraceptives are abortifacients, notwithstanding that from a medical perspective these items are not abortifacients.) Because there were alternative ways to provide contraceptive coverage to employees, the Supreme Court found that the Affordable Care Act violated the Religious Freedom Restoration Act (which applies a compelling interest/narrowly tailored test to federal laws that substantially infringe on religious beliefs).
Since the 2014 decision, the Department of Health and Human Services has created a form to allow employers to opt-out of paying for coverage. The form, however, requires the employer to provide information about that employer’s insurance policy that allows the government to pay the additional premium to make contraceptive coverage for the employees of the company. Several non-profit organizations with religious affiliations object to the form claiming that any cooperation with the government’s provision of such coverage makes the organization an accomplice to the provision of contraceptive coverage, thereby violating the organization’s religious beliefs.
Putting aside the specific objections to the current forms, it is unclear that any set of forms would satisfy the broader objections of these organizations. (A different set of rules applies to churches themselves). Any form that the government could create that requires an employer to identify their insurance provider while seeking an exemption from providing coverage for contraceptive care would be improper in the eyes of this group. They basically want to be able to make the government jump through hoops before the government can pay for their employees to have access to contraceptive care. It is entirely possible that the Supreme Court will find some problem with the current form. I would expect, however, that the governing opinion in this case will be very specific about what is wrong (if anything) with the current form and give specific directions on how to fix it. I can’t see the justices wanting to have to review the form every two to three years until the government gets it right. I also can’t see 5 justices going as far as these organizations want and allowing them to obstruct the government’s ability to provide that coverage at no expense to the employer.
The other set of cases is the recent round of abortion regulations passed after 2010 by many red states. The Supreme Court will specifically look at the laws passed by Texas, but cases from other states are on hold waiting for a decision on the Texas statutes. Back in 1992, then-Justices O’Connor and Souter and Justice Kennedy replaced the compelling interest test for second and third trimester regulations of abortion with a substantial burden test (and replaced the bright line trimester test with a fuzzier viability standard). Since 1992, the Supreme Court has pretty much avoided taking a closer look at the substantial burden test, but this case requires the Supreme Court to either put some teeth in the test or make it a meaningless test.
There are two basic questions presented by the case. First, must the federal court accept the state legislature’s finding that the restriction on abortion serves a valid medical purpose? In this case, Texas is requiring the doctors performing the abortion to have admitting privileges in a nearby hospital. While — for any type of out-patient surgery — it is better if the doctor performing that surgery has admitting privileges in a nearby hospital, whether such privileges are necessary depends (in part) on the risk of complications. Texas also requires that, if an abortion is provided after 16 weeks, the clinic must meet the standards met by other places that perform out-patient surgery.
Second, assuming that the regulations are medically appropriate, do the regulations create a substantial burden. In the case of Texas, the regulations will effectively close a significant number of facilities in the more rural parts of the state. While every state has its own population pattern, what is the threshold at which enough women lack easy access to an abortion provider a substantial burden on the women exercising their right to an abortion. (The pending Mississippi case presents an even more severe case as the regulations in Mississippi will effectively leave that state without any abortion care providers.)
Without reviewing the record, I don’t know how much evidence was presented on these issues and the findings made by the trial court. My hunch is that we currently have a 4-3-2 split on abortion on the Supreme Court. Four would fully uphold the right to abortion and would want to give some bite to the substantial burden test. Three (Scalia, Thomas, and Alito) would welcome a case actually asking to overturn the right to abortion. The decision in this case (as in many other liberal-conservative splits) will come down to Chief Justice Roberts and Justice Kennedy. They will want to give the state some leeway in regulating abortion. My hunch is that they will say that the trial court needs to scrutinize the validity of the reasons supporting the regulation (rather than deferring to the legislative determination that the regulation is supported by valid reasons) and how difficult it will be for abortion providers to comply with those regulations. They most likely will kick the case back for further findings by the trial court. My expectation is that the opinion will probably imply that the requirement about being within 30 miles of a hospital at which the doctor has admitting privileges is unlikely to be constitutional (as that rule would result in a single hospital having veto power over abortions in some parts of the state) but that the requirements about standards are probably constitutional (as it seems to treat abortions like other similar medical procedures).
How these opinions are phrased (and then spun in the media) could have a great impact on fall elections. With Scalia, Kennedy, Breyer, and Ginsburg nearing a likely retirement over the next 8 years, partisans will be able to emphasize the importance of whom the next president appoints to the Supreme Court. If the plurality opinions in these two cases from Chief Justice Roberts and Justice Kennedy reflect that they give little weight to the reproductive freedom of women, it will be easier for Democrats to make the case to moderates who lean Republican that their freedoms are at risk if a Marco Rubio or Ted Cruz gets to name replacements for Justice Breyer and Justice Ginsburg. If the plurality draws a clear line in the sand that prevents efforts for even more draconian regulations in the red states and prevents employers from obstructing access to contraceptives, it will be easy for Republicans to rile up Christian Conservatives that a President Clinton will appoint Justices that will disregard traditional values and the “will of the voters” in red states.