In her 2014 Hobby Lobby v. Burwell dissent, Ruth Bader Ginsburg passionately argued that “your right to swing your arms ends just where the other man’s nose begins,” citing an oft-repeated reference to First Amendment rights well known to lawyers. In that case, a divided Court granted accommodations for a for-profit company’s religious beliefs, allowing it to refuse to provide contraception through its employer-based health care.
For nearly 50 years, women have had a fundamental privacy right to protecting a woman’s liberty to choose whether or not to have an abortion. Recent cases before the Supreme Court risk imposing substantial limitations or even overturning this right. A new Supreme Court with a conservative super majority could very well dismantle hard-fought battles to achieve equal rights for women, as well as protect the rights of LGBTQ+ people and other vulnerable communities.
“There is reason to be fearful given the composition of the Court,” says Rachel Laser, president and CEO of Americans United for Separation of Church and State, headquartered in Washington, D.C. In addition to appointing judges and justices who have a conservative view on religious liberty, the Trump administration introduced “a spate of regulations that permit religious freedom to be misused so as to invite discrimination against LGBTQ+ Americans, women, religious minorities, and non-theists.”
In July 2018, President Trump appointed a Religious Liberty Task Force headed by Attorney General Jeff Sessions, who declared freedom of religion the “first freedom.” The stated goal of the task force was to make religious rights “first order rights,” trumping all other First Amendment rights, and accelerating the opportunities to discriminate based on race, age, gender, and sexual orientation, while also threatening access to health care and employment protections.
“Religious rights as a ‘first freedom’ is an idea pushed by members of the Christian right that religious liberty is not just part of the First Amendment, but it’s the most important part above all other rights,” says Elizabeth Platte, director of the Law, Rights, and Religion Project at Columbia Law School in New York City, a law and policy think tank launched in 2014 to address the increased use of religion-based exemptions from compliance with federal and state laws.
Platte points out that while religious liberty cases have been making an appearance on the SCOTUS docket for a long time, who is bringing them and who is winning them is what have changed. “We’re talking about a very narrow set of views,” says Platte, who points out that many religious liberty cases in the ’80s and ’90s were brought about by a variety of smaller groups, such as Orthodox Jews or Seventh-Day Adventists. “A lot of the big-name cases that have won over the past few years have been brought by much larger conservative Christian denominations, and that is a significant shift.”
At around the same time, Trump launched the religious task force, a coalition of Christian evangelical organizations published a 148-page “playbook” with the stated goal of establishing the United States as a Christian nation. Project Blitz, a coalition of Christian right groups, provides model legislation and encourages lawmakers to gradually introduce laws that would start with seemingly less controversial measures, such as allowing “In God We Trust” to appear in classrooms, and then move on to promote prayer in public schools and ultimately use religious freedom as a way to license discrimination.
The appointment of Justice Amy Coney Barrett to fill the SCOTUS vacancy following Justice Ruth Bader Ginsburg’s death heightened fears due to concerns over her conservative religious background and the new Supreme Court’s jurisprudence on religious liberties. “Trump campaigned on a promise to install justices that would lead to the reversal of Roe v. Wade,” says Scott Ruskay-Kidd, senior staff attorney for the judicial strategy team at the Center for Reproductive Rights, headquartered in New York City. “There is a tremendous amount at stake.”
What’s on the Docket: Fulton and the Affordable Care Act
Court watchers are focusing on two cases where oral arguments have been heard and the Court is expected to rule on in the coming months: California v. Texas and Fulton v. City of Philadelphia.
Fulton v. City of Philadelphia was brought by a Catholic social service agency that refuses to place foster children in the care of same-sex couples. The agency lost its funding for violating the state’s antidiscrimination laws. “This is not just about private entities that want to discriminate, but an organization that wants to get government funding and discriminate,” says Caroline Corbin, a professor of law at the University of Miami School of Law who focuses on the First Amendment’s speech and religion clauses and their intersection with equality issues.
The American Civil Liberties Union (ACLU) filed a motion to intervene at the district level before it reached the higher court. Louise Melling, ACLU’s deputy legal director and director of its Ruth Bader Ginsburg Center for Liberty in New York City, agrees that Fulton is the case to watch. “How is the Court going to manage when it confronts the question of whether someone performing a government function can set the terms of the contract and discriminate with taxpayer dollars while performing a government function?”
The Women’s Law Project (WLP), a legal advocacy organization based in Pennsylvania that focuses on the rights of women and girls, joined the National Women’s Law Center, based in Washington, D.C., in filing an amicus brief expressing concern over the implications Fulton v. City of Philadelphia could have for women’s rights. Amal Bass, WLP director of policy and advocacy, points out that no one is questioning whether Catholic Social Services (CPS) has a sincerely held belief, but rather whether it has a right to taxpayer dollars. “We’re pitting these rights against each other and putting it into some sort of hierarchy. Sure, you have sincerely held religious beliefs, but you don’t have a right to this funding when the government has decided they have a compelling interest in eradicating a form of discrimination.”
Oral arguments for Fulton were heard in November 2020, and the line of questioning concerned many Court watchers and civil rights advocates. Besides being the first major case after the appointment of Justice Barrett, whether or not the Court could widen exemptions for religious entities is the primary concern.
“If you accommodate their religious interest by telling the people you’re trying to protect to get the service somewhere else, it places the burden on LGBTQ+ families,” says Bass, who points out that if CSS was granted an exemption, nothing would stop other government-funded entities from doing likewise. “Can they impose it on a pregnant student at a religious school that otherwise has to abide by title IX requirements?” Real cases are out there.”
Because many social service agencies contracted with the government are run by religious organizations, the consequences could have a tremendous impact, says Denise Diskin, executive director at QLaw Foundation of Washington, an organization providing legal services to the LGBTQ+ community in Washington State. Diskin points out that members of the LGBTQ+ community are disproportionately more likely to be poor, unhoused, and already marginalized by racism, poverty, and transphobia. “This pushes us further to the margins,” she says. “If they can openly discriminate, how can we know the next case won’t be a homeless shelter receiving public funds?”
Other cases to watch include California v. Texas, which once again addresses the constitutionality of the Affordable Care Act (ACA) after the effective elimination of the individual mandate. While this case does not deal with religious liberties, women’s rights groups are actively watching this as many see the ACA as “a very significant piece of civil rights legislation in terms of its implications for women since it prohibits discrimination based on sex,” according to Louise Melling.
Finally, while the landmark 2020 Bostock v. Clayton County ruled that Title VII sex discrimination included protections for the LGBTQ+ community, it explicitly left open the question of religious freedom. “We expect that to come back to the Supreme Court,” Rachel Laser notes.
Ministerial Provisions and Exemptions
Even prior to the appointment of Amy Coney Barrett, the Supreme Court had seen a rise in cases challenging reproductive rights in the name of religious freedom, usually concerning access to contraception as well as abortion. Last year, the Court ruled 7–2 in Little Sisters of the Poor v. Pennsylvania, upholding the Trump administration’s expansion of religious exemptions under the Affordable Care Act.
In summer 2020, the Court struck down, in June Medical LLC v. Russo, a Louisiana law that required doctors performing abortions have admitting privileges at a state-authorized hospital. While this was considered a victory in the view of reproductive rights’ advocates, Chief Justice John Roberts’s controlling concurrence suggested a 2016 landmark case, Whole Women’s Health v. Hellerstedt, was wrongly decided. Whole Women’s Health upheld previous rulings that said laws could not present an “undue burden” when seeking access to abortion, but it also mandated that a law actually advance the objective of protecting women’s health.
While Chief Justice Roberts’s respect for precedence has caused hope that he would be hesitant to turn back Roe v. Wade, his ruling in June Medical is a cause for concern. “I think it’s pretty clear he says that there’s enough precedent on abortion as a constitutional right and he cannot eliminate the protection, but he thought the protections provided by Whole Women’s Health were not legitimate,” Caroline Corbin says.
Just how far the Court might go with the expansion of exceptions is a concern in Fulton as well as other cases. The July 2020 ruling of Our Lady of Guadalupe School v. Morrissey-Berru expanded the principle of ministerial exception, which bars the application of antidiscrimination laws to a religious institution’s employment policies. In deciding this case, which involved the firing of two Catholic school lay teachers, the Supreme Court broadened the scope of ministerial exception to include people whose predominant duties are secular, thus lowering protections for employees.
Roe v. Wade: Why People Are Worried
Since the Trump administration made clear its intention to overturn Roe v. Wade, many think the outcome is inevitable with a 6–3 conservative majority. “Clearly, with six justices who can be fairly described as conservative and supportive of religious liberty, I think we are going to see changes in the law,” Corbin says. “Even if you might have someone like Justice Roberts defecting because of his concern about the institutional legitimacy of the Supreme Court, it still leaves five others.”
Mary Ziegler is a professor at Florida State University College of Law in Tallahassee and author of Abortion in America: A Legal History, Roe v. Wade to the Present. Ziegler points out that, in the past, people have been certain that Roe would be overturned. “History is a humbling thing to any lawyer trying to make predictions because we’ve been wrong before,” she says.
But in view of the Supreme Court vetting process in recent years and the determination and influence of Republicans and far-right Christian organizations under the Trump presidency, she notes that “enough has changed to make it seem that the threat to legal abortion is much more real than it was in the 80s or 90s or since Roe was decided.”
Ziegler also points out that historically the Supreme Court has opted for “incremental rather than seismic changes” and may focus on cutting back on rights and protections. Following the strategy of Project Blitz, many states have intentionally passed unconstitutional laws to ban abortion, hoping that one would wind its way to the Supreme Court and overrule Roe v. Wade. These multiple barriers particularly impact people of color, low-income people, and residents in rural areas with fewer options.
“These are passed in the name of women’s health, but they don’t advance women’s health,” Corbin says.
Currently, the standards set by Whole Women’s Health offer some protection, but Chief Justice Roberts’s opinion in June Medical throws a shadow over future rulings. “If the Court rolls back that added protection, then these laws are more likely to stand,” Corbin notes.
Both Chief Justice Roberts’s concern for precedence and the belief that the Supreme Court continues to be an institution that rises above political whims have raised hopes, but it’s still unclear where the new Trump appointees may fall. Ziegler points out that Roberts has been known to be cautiously concerned about precedence, while Justice Clarence Thomas has proven to be more of an ideologue.
Since the appointment of Amy Coney Barrett, speculation around expanding the Court or imposing term limits could have the effect of restraining some of the newer appointees. “There’s probably some awareness in the Supreme Court that if the Court were to overturn Roe in June, all bets will be off,” Ziegler says.
Whether the three new conservative justices take the Justice Thomas approach and not concern themselves with political backlash or potential Court-related legislation or whether they take Roberts’s approach of “incremental and slower unravelling of abortion rights” remains to be seen.