In 1989, I was waiting impatiently for the Supreme Court to issue an important decision. (Sound familiar?) June 30 came and went, and still the Justices hadn’t finished their business – a very unusual situation. Finally, on July 3, the Court handed down its decision in Webster v. Reproductive Health Services. That was the day I learned that I was foolish to expect the Court to come down solidly one way or another in any abortion decision.
The state of Missouri wanted to restrict the use of state resources for abortion. In the sixteen years since Roe, no significant state restriction on abortion had withstood a challenge. Webster changed that on a 5-4 vote, with the plurality decision written by Chief Justice William Rehnquist. I am oversimplifying here (the case had a plurality opinion, two concurring opinions, and two concurring-in-part-and-dissenting-in-part opinions), but the upshot of Webster was that while abortion was a liberty protected under the Due Process clause of the Constitution, a state need not commit any resources to abortion. From Rehnquist:
“Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions.”
The fact that the Missouri law had a preamble recognizing that life begins at conception was irrelevant to the decision and could be ignored, said Rehnquist, since the preamble was not in itself a law.
I was not the only person walking around saying “huh??” for a couple of days after that one. Portions of the Missouri law were upheld, while Roe itself was left intact – a fact that bothered Justice Scalia no end. From his concurrence, in which he seemed to be holding his nose as he wrote:
“The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, and not juridical — a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.”
Justice Blackmun, Roe‘s author, was still on the Court in 1989. He didn’t like the Missouri law one bit, and in his dissent he made sure the world knew it. “For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”
It’s 2014, and Roe still stands. Over fifty million children have been aborted, according to some estimates. So much for controlling destinies. Chill wind, indeed. Yet Blackmun’s spiritual progeny hold that Roe is in danger of being overturned any minute. Statistics, licensing of abortion facilities, Gosnell-prevention measures, parental involvement: all threaten Roe, according to abortion advocates. All remain subject to one fight after another in state capitols and in courts. And more often than not, in recent years, the right of people to regulate abortion within their states has been affirmed by legislators and judges.
One hates to be the skunk at the garden party, but that’s the position in which I find myself. The Supreme Court’s Hobby Lobby decision was a relief. That’s it. It isn’t worth having a party over. I wish it were.
The Twitterverse would have you believe otherwise. So would the flood of advocacy emails now filling my email inbox. One side thinks the decision is a terrible danger to women (though not to female business owners, somehow). The other side says it’s a smackdown to Obamacare, a ringing affirmation of the First Amendment, and an all-around win for the forces of truth and justice.
All this fuss and bother, just because five Justices (and only five) agreed that a boss in a closely-held private company may not be compelled to help pay for or procure an employee’s abortion-inducing “birth control.” This is a limited decision – appallingly limited.
Let’s all settle down and read the decision, shall we? As usual with end-of-term Supreme Court decisions, this issue is too important to leave to the lawyers.
What the Court’s majority said:
This is no landmark First Amendment case. This decision is based on two statutes: the Religious Freedom Restoration Act of 1993 and a follow-up law, RLUIPA, that Congress passed in 2000.
“Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.” (Justice Alito writing for the majority)
“Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns [other parties to the case].” (Emphasis added.)
“By enacting RFRA, Congress went far beyond what this Court has [earlier] held is constitutionally required.”
Corporations have the same rights as individual persons for purposes of protection under RFRA. “[P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga , and Mardel protects the religious liberty of the humans who own and control those companies.”
RFRA means that if the federal government has a compelling interest in a policy, and that policy raises religious-liberty issues for someone, the government must use the “least restrictive means” of furthering its interest. In the Hobby Lobby cases, the government has failed to show that the contraceptive mandate is the least restrictive way of promoting its interest in giving women “cost-free” access to the four contraceptive methods to which the owners of Hobby Lobby have religious objections.
“We will assume that the interest in guaranteeing cost-free access … is compelling within the meaning of RFRA…”
This decision does not apply to publicly-traded corporations or to nonprofits.
The federal government can pay for contraception without having to involve employers.
What the majority did not say:
The majority did not address the issue of whether the federal government is correct in making a public-health priority out of the suppression of women’s fertility. It did not give a blanket exemption to anyone who has religious objections to contraception and abortion. It addressed the plaintiff’s concerns over four particular abortifacient drugs and devices without addressing potential objections to other forms of birth control. It did not say the government has no business meddling in birth control (quite the contrary, in fact). It did not hold out hope that the Hobby Lobby reasoning would apply to larger, publicly-held corporations. It did not recognize that the mandate’s “accommodations” to religious entities are a joke. Maybe that will have to wait for the Little Sisters of the Poor case.
Justice Samuel Alito wrote the majority decision, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.
What the minority said:
Justice Ruth Bader Ginsburg wrote a strong dissent, joined by Justices Sotomayor, Breyer and Kagan. That’s four, which is one vote away from five. Think about that as you consider who you want in the U.S. Senate, voting on confirmation of the next nominees to the Court.
Unlike the majority, Ginsburg was willing to bring the First Amendment right into the middle of the discussion, so that she could give it a clear dismissal. She calls the companies’ Constitution-based Free Exercise claims not tenable, where Alito considered them merely irrelevant (relying instead on RFRA).
“The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the [Affordable Care Act] would otherwise secure. …In sum, with respect to free exercise claims no less than free speech claims, ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ … I would confine religious exemptions under [RFRA] to organizations formed ‘for a religious purpose,’ ‘engaged primarily in carrying out that religious purpose,’ and not ‘engaged …substantially in the exchange of goods and services for money beyond nominal amounts.’” [Emphasis added.]
Enough for today, but watch out for future mandate cases
Much remains to be said, but for now, all I can conclude is that the decision could have been much, much worse. Dozens of more challenges to the mandate are in the federal courts now. Some are from for-profit companies. Many more are from non-profits that the Supreme Court might or might not decide are “religious” enough. Let’s hope Justice Ginsburg doesn’t write for the majority when those cases are decided.
Now that the Supreme Court has declared in McCullen v. Coakley that the Massachusetts buffer zone around abortion facilities is unconstitutional, where do New Hampshire’s candidates stand? Here’s a roundup of what gubernatorial and Senate hopefuls are saying on their web sites and in news reports. Note that candidate Scott Brown helped pass the law that just failed to pass constitutional muster.
Democratic incumbent Senator Jeanne Shaheen: “Buffer zone laws exist to protect women from harassment and intimidation as they seek medical care and in the absence of these protections, we are compromising public safety. We must be able to respect First Amendment rights while also protecting women at the same time, and I am disappointed by the Supreme Court’s decision which will have an unnecessarily harmful impact on the safety of women seeking to receive legal reproductive healthcare.”
Republican Scott Brown, who as a Massachusetts state senator voted to pass the Massachusetts law that was just declared unconstitutional: “I supported the Massachusetts law that created buffer zones around abortion clinics. Despite the Supreme Court’s decision striking down that law, I do not regret my vote. No matter how you feel about abortion, women should feel safe when they seek out and obtain medical services for themselves. Here in New Hampshire we have a similar buffer zone law. The Supreme Court has provided guidance on how to modify such a law so that it balances constitutionally-protected free speech rights with the right of women to feel safe. I encourage Governor Hassan and the New Hampshire Legislature to make any necessary adjustments so that the law can remain substantially in place.” (reported by nhjournal.com)
Republican Bob Smith: “I am very pleased that the Court has ruled that the so-called “buffer zone” infringes upon the First Amendment rights of those who wish to protest against abortion. The unanimous decision of the Justices speaks volumes, as to how extreme this law was in the first place. It was a direct affront to our First Amendment freedoms and the law was originally crafted to harass pro-life people, who only wished to peacefully protest and perhaps save the life of an unborn child. Scott Brown voted for the Buffer Zone bill when he was a Massachusetts state senator. Liberal Governor, Maggie Hassan, also signed the “buffer zone” into law in New Hampshire and Senator Shaheen has long been an outspoken advocate for abortion. Once again Senator Brown finds himself aligned with the left and out of touch with the Republican Party. I am proud to announce that I am thrilled with the high court’s decision and that I am the only pro-life Republican in the race for U.S. Senate in New Hampshire and that I support the Republican Party platform 100%.” (reported by http://thedavelevineshow.ning.com/)
Republican Jim Rubens: “Restricting peaceful speech and prayer in public spaces – even about controversial subjects like abortion – is flagrantly unconstitutional. I am happy that the court recognized this unanimously.”
Republican Mark W. Farnham on Twitter (@pudge1954): “Buffer zone: Principle or slippery slope? SCOTUS decides 35 ft. interferes with free speech. 1 inch? 10 ft. ? 25 ft.? #safepassage#bullhorn”
Democratic Governor Maggie Hassan, who recently signed New Hampshire’s buffer zone law: “Women should be able to safely access health care and family planning services, and the bipartisan legislation that I signed earlier this month was narrowly tailored, with input from the law enforcement community and municipal officials, to ensure the safety and privacy of patients and the public, while also protecting the right to free speech. New Hampshire’s law is different than Massachusetts’, but we will closely review today’s decision to determine its impact, if any, on our state.”
Republican Andrew Hemingway: “This is a victory for the First Amendment. This is a victory for the right to free assembly and the right to free speech. This court unanimously put aside any political preferences on the issue of abortion and acknowledged this is simply a matter of the First Amendment–something Maggie Hassan refused to recognize in her zeal to protect abortion providers, which is one protection not covered in the Constitution. This is yet another example of Governor Hassan’s extreme ideology—trampling on the Constitution to advance her personal political agenda.”
Republican Walt Havenstein: “This is a victory for the First Amendment and I agree with the Supreme Court. The case shows how unwise it is to sign laws which infringe upon the Constitution.” (reported by nhjournal.com)
Some State Senators who voted on NH’s bill
A few state senators went public with their views on the decision.
Chief sponsor of the NH buffer zone bill, Sen. Donna Soucy (D-Manchester): “I will carefully review today’s decision issued by the U.S. Supreme Court to determine the impact, if any, on New Hampshire’s recently enacted law. I am thankful for the bipartisan work of my colleagues in the Legislature, that cautiously crafted a narrow law which is more limited than the Massachusetts’ law at issue in the decision. I continue to believe that women should be able to access critical health care services without fearing for their safety and will continue to work to ensure their safety while carefully balancing free speech rights.”
NH Journal (nhjournal.com) carried remarks from Manchester’s other two senators. Co-sponsor Lou D’Allesandro (D): “No matter how you look at it, it’s a blow. The New Hampshire law is a little different situation [from the MA law], but the basic premise is unconstitutional in nature, and that resonates. That’s the key ingredient.” From David Boutin (R), the only Manchester senator to vote against New Hampshire’s buffer zone: “The Supreme Court made the right decision. This case was about the people’s right of free speech and free assembly. The Supreme Court has validated those rights and invalidated the government’s effort to try to dampen those rights. It’s a good day for New Hampshire.”
Senator Sharon Carson (R-Londonderry), chairman of the Senate Judiciary Committee, who led the floor debate in opposition to the buffer zone bill: “The Supreme Court’s unanimous decision today affirmed the concerns raised by lawmakers, Constitutional scholars, and others over this last session with regards to New Hampshire’s buffer zone bill. In siding with the plaintiffs in this case, the Court has agreed that these buffer zone laws pose an onerous burden to the free speech rights of those who wish to educate, protest, or otherwise exercise their Constitutional rights around these facilities. As the court noted in its ruling, there are steps lawmakers can take to ensure safe and open access for patients to reproductive clinics, but in crafting those laws we must be mindful of the First Amendment rights of all of our residents.”
New Hampshire’s buffer zone law is based on a Massachusetts law that has just been ruled unconstitutional. So much for one sorry attempt at “bipartisanship.” It seems Democrats and Republicans are equally capable of dismissing the Bill of Rights.
In a unanimous decision, the U.S. Supreme Court has ruled the Massachusetts buffer zone law unconstitutional. A sweeping ruling? No. A good day? Definitely. A fatal blow to New Hampshire’s ill-conceived copycat law? We’ll see.
What does this mean for the New Hampshire law?
Could the legislature repeal the law? Sure. It wouldn’t need this decision to do it, though. Just file a repeal bill for next January.
Does this case automatically invalidate the New Hampshire law? No. However, anyone seeking an injunction against enforcement now has a great tool. Any enforcement that does take place – and remember, signs have to go up outside an abortion facility before the New Hampshire buffer zone law can be enforced – will be subject to legal challenge. How much money does the cash-strapped State of New Hampshire want to spend defending a law that is obviously constitutionally defective?
The Court remanded the Massachusetts case back to a lower court, which could uphold certain portions of the law. New Hampshire’s abortion partisans will undoubtedly watch closely, and will try to retain any portion of the law not explicitly rejected as unconstitutional.
What did the Court get right?
It recognized that the First Amendment is alive and well, even within 35 feet of abortion facilities. Public sidewalks, traditionally a public forum, can’t be treated as though they’re the private property of abortion providers. The affirmation was restrained (about which more below), but it was an affirmation nonetheless. From Chief Justice Roberts’s opinion:
Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.
Alternatives: now, there’s a thought. There was no attempt outside abortion facilities to enforce existing laws before the New Hampshire buffer zone was passed. A private entity – Planned Parenthood of Northern New England – testified that it had 60 complaints from clients about activities outside its Manchester facility. The Manchester police department wasn’t involved. No citations or arrests were made for disorderly conduct, trespassing, or even illegal parking in conjunction with pro-life activity outside abortion facilities.
The Court found that the Massachusetts law was not “narrowly-tailored.” New Hampshire’s law is, according to Governor Hassan. Given that the sponsors of the New Hampshire law looked to the Massachusetts law for guidance, I’m skeptical of the Governor’s claim. Justice Roberts again:
To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.
And one more poke in the eye to all the people who said a buffer zone was essential:
If Commonwealth officials can compile an extensive record of obstruction and harassment to support their preferred legislation, we do not see why they cannot do the same to support injunctions and prosecutions against those who might deliberately flout the law.
In other words, enforce your existing laws before stomping on the First Amendment.
How does the decision fall short?
The decision says that buffer zones are not about content-based speech, which would have required the State to meet a much higher standard before restricting speech.
Come on, you black-robed sages. Seriously? Chief Justice Roberts wrote that the Massachusetts law is not directed at speech opposing abortion, and therefore is not subject to “strict scrutiny.” It’s enforceable around abortion facilities, but it’s not about abortion-related speech, says Roberts. Let that sink in for awhile. Three Justices looked at the Chief’s finding and decided they had to respond.
Justices Scalia, Thomas and Kennedy said in effect “right decision, wrong reason.” Scalia wrote for all three of them in his usual brisk and blunt tone. He was highly critical of “abortion-speech jurisprudence,” a special class of free speech that in his judgment his colleagues seem to think abortion opponents deserve. “Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.” By declining to impose the strict-scrutiny standard, writes Scalia,
…the majority [of the Court] can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review….Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Convention? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.
Scalia also took a look at the Planned Parenthood League of Massachusetts web site (as recently as two days ago) to check out the help-wanted ad for “clinic escorts.” He found that no threat to public safety was mentioned, and of course public safety is what buffer-zone advocates tout as one reason such laws are needed. Writing for Justices Thomas and Kennedy as well, Scalia suggests that public safety is being used to mask barriers to free speech.
The Web site for the Planned Parenthood League of Massachusetts (which operates the three abortion facilities where petitioners attempt to counsel women), urges readers to “Become a Clinic Escort Volunteer” in order to “provide a safe space for patients by escorting them through protestors to the health center.”…The dangers that the Web site attributes to “protestors” are related entirely to speech, not to safety or access. “Protestors,” it reports, “hold signs, try to speak to patients entering the building, and distribute literature that can be misleading.”… The “safe space” provided by escorts is protection from that speech. … I concur only in the judgment that the statute is unconstitutional under the First Amendment.
This ain’t over
The Massachusetts law will have to be re-drawn in order to pass constitutional muster. So will New Hampshire’s, it seems to me. It is not true, however, that the Supreme Court today struck down all abortion-facility buffer zones for good. There was no finding that trying to squelch pro-life witnesses is unconstitutional per se, only that doing so with a new law without first enforcing old ones is a no-no.
These things take time. The Massachusetts case began in 2008, if I’m not mistaken. Any chance for the Supreme Court to elevate buffer-zone laws to a strict-scrutiny standard is years away. Every case has to start somewhere, though. One state (or city) at a time, abortion advocates will try to silence pro-life witness. One arrest or citation at a time, pro-life witnesses can challenge the law. The Court will probably deny a hearing to several challenges before taking up abortion-related buffer zones again. An expanded ruling could be a decade away.
That’s today’s reminder that it matters who holds the Presidency and nominates Justices to the Court.
Spare a moment today to offer a prayer of thanksgiving for people like Eleanor McCullen, the plaintiff of record in the Massachusetts case, and the team of lawyers who helped her get to the Supreme Court. This was a battle worth fighting.
Breaking news: the U.S. Supreme Court unanimously agreed today that the First Amendment applies to speech. Seriously. And it all started when a Congressman lost his re-election bid and accused a pro-life group of denying him his livelihood. (Can’t make this stuff up.)
I’m only barely facetious here. What actually happened was that the Court ruled that the Susan B. Anthony List has standing to challenge an Ohio “false statement” law on First Amendment grounds. Former Ohio Congressman Steve Driehaus took exception to SBA List’s claim that his vote for Obamacare was a vote for abortion. He lost his election and blamed SBA List for it. He cited an Ohio law criminalizing “false statements” during a campaign.
SBA List is fighting the law, claiming that not only was their statement true, but that the First Amendment takes precedence over state law. The Supreme Court today agreed that the group may continue its challenge to the Ohio law in lower courts.
That’s reassuring. I hope it’s not the high-water mark for free speech and religious liberty, as we wait for buffer zone and Obamacare mandate decisions within the next couple of weeks.
Remarks after the decision: “We will continue to tell the truth”
SBA List President Marjorie Dannenfelser spoke to reporters during a conference call less than an hour after the decision was announced, saying that she did not go looking for this case. “We are a pro-life group, and our job is to win elections. We will continue to tell the truth even if an Ohio law says we have to stop speaking.” She called today’s decision “a resounding victory against fear in the public square. The threat of jail time, of fines that could put you out of business, that is a chill.” She added “it’s still the voters’ responsibility” to evaluate statements made in the course of a campaign.
Michael A. Carvin, one of the attorneys for SBA List in this case, said the group would move “very expeditiously” to an Ohio district court, seeking an injunction against Ohio’s so-called “false statement” law in time for the Fall 2014 elections. “There’s no excuse for delay.”
Carvin noted that the Ohio elections commission has independent litigating authority. What that tells me is that even if the Ohio attorney general declines to waste taxpayer resources on a dead-bang-loser of a free-speech case, the elections board could go ahead anyway. (We don’t know what Ohio officials will decide to do at this point.)
Obamacare and abortion
We already know about the HHS contraceptive mandate, which includes coverage for abortion-inducing drugs under the mistitled “Affordable Care Act.”. SBA List points out further issues:
“The law, known as Obamacare, permitted direct payments for abortion under risk pools and other clauses and included elective abortion plans in tax-preferred state exchanges. The law’s Preventative Services Mandate forces employers to provide coverage of abortion-inducing drugs and also includes a loophole allowing Congress and its staff to spent federal dollars on abortion-funding health care plans.”