The religious right has been successful at chipping away at the right of women to get abortions and contraceptives, putting in one restriction after another. The US Supreme Court has generally gone along with these moves but at the very end of the past term the court issued two rulings that, at least in the short term, seemed to go the other way.
The state of Texas (of course) had passed some very restrictive rules for clinics that provide abortion services that would have required them to meet hospital level operating standards, a high bar that would have resulted in the shutting down of 10 of the 19 clinics that still remain open. This number was down from the 41 that existed in 2013 before a different law was passed requiring all clinic doctors to have hospital admitting privileges.
The clinics had appealed the latest restriction but lost in the district and appeals courts. But in one of its last acts (just before the new law was due to go into effect yesterday) the Supreme Court issued a 5-4 decision granting an emergency appeal to suspend the appeals court ruling, enabling the 10 clinics to stay open until the court decides whether to hear the case was heard and decided upon.
Texas’s omnibus law – known as HB2 – is part of a legislative trend to limit access to abortions by regulating facilities, providers and doctors. The added red tape forces clinics that cannot afford to make the upgrades to close. Moreover, hospitals often require doctors to admit a minimum number of patients before they are granted admitting privileges.
The law was enacted by a Republican-led legislature in 2013. One month before its approval, there were 41 clinics in Texas that provided abortions, according to a study by the Texas Policy Evaluation Project at the University of Texas. By May 2014, there were only 22 clinics where women could legally end their pregnancies.
There are currently only 19 clinics open statewide, according to the Center for Reproductive Rights, though they said the stay may allow some of the clinics to reopen.
Lyle Denniston explains what happened.
One provision requires all doctors performing abortions in the state to have the right to send patients to a nearby hospital, while the other requires all abortion clinics in the state to have facilities equal to a surgical center. The U.S. Court of Appeals for the Fifth Circuit upheld both provisions.
In a one-paragraph order, the Justices did not explain why they were postponing the law. If review of the law is denied later, the order will be lifted; if review is granted, it will stay in effect until a final ruling emerges. The actual petition for review has not yet been filed by the doctors and clinics involved.
The Justices in favor of delay were not named in the order, but it did take five votes to issue that postponement. That means it was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor.
The four Justices who noted that they would refuse any delay were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas.
In another ruling, the court kept is place (for now) some contraceptive rights that had been challenged by Roman Catholic colleges, charities, and other non-profits in Pennsylvania. These groups not only did not want their organizations’ insurance policies to have to abide by the contraception mandate required by Obamacare, they did not even want to file the simple self-certification form that would grant them an automatic religious exemption, seeing even that as an infringement of their religious freedom, saying that “signing such a form or letter facilitates moral evil”. Their claim was denied in February by the Third Circuit Court of Appeals but in April 2015 justice Alito granted a temporary stay and referred the matter to the full Supreme Court.
Denniston explains that as a result of this week’s Supreme Court’s intervention:
First, the religious groups must provide some type of notice to the federal Department of Health and Human Services that they want and are entitled to a religious exemption from the mandate.
Second, the women who are employed by or are students at the religious organizations are assured that they will have access, at no cost to them, of birth control methods and devices approved by the federal Food and Drug Administration. The government can go ahead, the Court made clear, and make arrangements for the health insurance plans in effect for the religious groups to assure free access to the contraceptives. The government will reimburse the cost.
The Court’s order stressed that it did not mean that the Justices were ruling on the correctness of the Third Circuit decision. That will be the issue if the Court grants review in the pending case of Zubik v. Burwell (docket 14-1418).
So these poor religious organizations will have to live with the “moral evil” of filling out a simple form to get an automatic exemption from paying for the contraception mandate. So what are the theological implications of doing so? Are they condemning themselves to an eternity in hell? Or at least considerable time in purgatory? Surely if this is such an evil they should be willing, like the Christian martyrs of old, to defy the law and suffer the consequences? Inquiring minds want to know.
These two cases will likely come up during the next term beginning in October 2015.