It would be easy to forget this week that the Supreme Court was once conservatives’ favorite punching bag. None of the longstanding complaints about judicial activism could be heard in the celebrations of the Hobby Lobby decision on contraceptive coverage, the Harris decision limiting the reach of public-sector unions, or last week’s McCullen decision striking down a Massachusetts abortion clinic buffer zone law, to name just a few.
For contrast, you don’t even have to go as far back as Ronald Reagan, who in 1985 promised to appoint judges ”who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism.” You just have to look to last year, to a column by Phyllis Schlafly, an influential conservative activist who in 2004 wrote a book decrying the “tyranny” of judges. Just last year, Schlafly wrote, “Unfortunately, there are already too many judges who consider themselves ‘supremacists’ with the power to resolve questions that should be resolved by the American people, either directly by ballot or through our elected representatives.”
She was talking about same-sex marriage, but it echoed conservative opposition to Roe v. Wade, the landmark 1973 case legalizing abortion. In decrying Roe, conservatives’ opposition to abortion rights has been cloaked in a concern for state rights and how the decision circumvented the democratic process.
None of this means the judiciary doesn’t have a role in protecting unpopular minorities against majority trampling. It just lays bare, as clearly as ever, that the dispute was never about judicial activism or democratic will as much as it was about starkly different values – including, most fiercely, about a woman’s right to not be pregnant. In considering the balancing act between women’s reproductive freedom and those who oppose it, this court took sides.
Needless to say, Schlafly was celebrating this week. She didn’t think the Court had gone far enough in the recent major cases, but conceded that it had “dealt significant blows to the leftist agenda” and pronounced the decisions ”positive for the pro-family agenda.” What a difference two Bush-appointed justices make.
Of course, the law struck down in the McCullen case was passed by elected representatives in Massachusetts with the stated intention of increasing public safety outside clinics that had seen significant violence. Protesters still had the right to protest, they just couldn’t get up in women’s faces. As for Hobby Lobby — which concerned a coverage regulation in an act passed by Congress and upheld by this court — a majority of Americans oppose letting bosses opt out at their employees’ expense. A Senate amendment that would have put into law what Hobby Lobby asked the Court to do failed.
You could even argue that the voters picked a side on this exact issue in the 2012 presidential election, where identical battle lines were already drawn. Just ask President Romney about what a winning message “religious liberty” standing in for your boss denying you birth control coverage was.
None of this is happening in a vacuum. Conservatives have done everything they can think of to make abortion illegal, including passing early-abortion bans, and through Personhood ballot initiatives and amendments. A handful of them have also sought to outright ban the same contraceptives that Hobby Lobby objected to, but voters and the courts have generally rebuffed them.
Social conservatives have had more luck on two fronts. In red states, they’ve passed onerous restrictions, including ones that shut down abortion clinics (so much for decrying overregulation). In more liberal states, they’ve gone after measures legislators have enacted to expand or protect access to abortion services like clinic buffer zones — this time positioning themselves as the oppressed minority. Across the country, buffer zones are now destined to be, or have already become, a thing of the past, leaving legislators scrambling to find narrower protections.
Cities like New York and Baltimore have passed ordinances aimed at making sure so-called crisis pregnancy centers, which seek to dissuade women from having abortions, disclose that they aren’t licensed medical centers or that they don’t refer for abortion. Conservatives, in turn, have gone to the courts to claim that this truthful disclosure violates their First Amendment rights. (So far, they’ve gotten mixed results.)
As University of Chicago law professor Eric Posner recently wrote in Slate, “Satisfyingly for them, conservative religious people can mount their challenges by drawing on the theory that lay behind the liberal victories.” Once, liberals turned to the Supreme Court to protect the rights of the unpopular from majority oppression. Now, as New York Times columnist Ross Douthat recently observed, “The Supreme Court, instead of being religious conservatives’ worst enemy, suddenly looms in at least some cases as their last best hope.”
Under this Court, the First Amendment has done good work for the conservative movement. In this term alone, it has recognized a wealthy businessman’s First Amendment right to donate to campaigns without aggregate limits, while sanctioning Christian prayer at a town board meeting. Justice Elena Kagan, in her dissent in that case, argued the ruling “does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”
Similarly, the McCullen case — decided unanimously — said the First Amendment protects protesters’ right to approach a clinic door or walk right up to an abortion patient’s face to deliver their message, whether the listener wanted to hear it or not.
Douthat insists liberals have already won the culture wars — despite so many conservative wins at the court, he calls progressives “sore winners” for, among other things, trying to extend contraceptive coverage to all private insurance plans. Put another way, allowing employees of religious people to have the same coverage as everyone else supposedly amounted to conscripting conscientious objectors as soldiers in the sexual revolution.
Hobby Lobby made First Amendment claims but ultimately won on an interpretation of the Religious Freedom Restoration Act, which expanded religious protections after the Supreme Court interpreted them too narrowly for Congress’s taste in the early nineties. But in the end, the Hobby Lobby case was about extending sympathy over the “substantial burden” put on the craft store billionaire owners rather than the one put on an employee making $28,000 a year. Justices took care to recognize corporate religiosity as a noble fact worth protecting, but shrugged off whether gender equality even counted as a worthy goal.
The highest court may yet have the opportunity to say whether women seeking abortion services, or their doctors, have similar protections from speech constraints or the right to refuse to participate in religious activity.
Planned Parenthood and the ACLU are challenging on First Amendment grounds a South Dakota law that requires abortion patients to visit crisis pregnancy centers before their procedure. The law, the two organizations told the court, is “forcing every woman who seeks an abortion to disclose and discuss her most private personal and medical information with an unlicensed, non-medical organization that is opposed to her decision,” and “entangles the State with religion by inserting such religious entities in the middle of the state-regulated physician-patient relationship.” But in considering a separate South Dakota law challenged as a First Amendment violation, the appeals court still thought it was perfectly fine to require doctors to tell women, contrary to solid medical evidence, that abortion may lead to suicide.
In North Carolina, a district court judge ruled that requiring a doctor to describe and show an ultrasound before an abortion was “an impermissible attempt to compel these providers to deliver the state’s message in favor of childbirth and against abortion.” But the same argument against a similar Texas law was rejected by the Fifth Circuit.
“A First Amendment inquiry,” said the ACLU’s Brigitte Amiri, who is part of the South Dakota case, “can give you a much stronger scrutiny of the law” than the vague “undue burden” legal standard currently applied to abortion, since some courts have said that unless it’s an outright ban of abortion, the burden is not “undue.” And Stephanie Toti, senior staff attorney at the Center for Reproductive Rights, said that when it comes to reproductive rights and the First Amendment, “it cuts both ways.”
Of course, that would require recognizing women who seek abortions and their doctors as deserving of the same legal protections from the burdens put on them as those the court sided with this term. These days, that’s hardly a given.
Irin Carmon