Life At Court

A compilation showing images of the U.S. Supreme Court building and an preborn baby.
Doug Fleener

The United States Supreme Court's 2015-16 term is well underway, and the issue of freedom is front and center in two major cases which will be decided and announced before June. So important, in fact, is one that its outcome might be viewed as the most consequential case for life since 1992's Planned Parenthood v. Casey, when the court almost struck down Roe v. Wade, the infamous 1973 decision that imposed abortion on all 50 states. Here is the state of play.

Texas Abortion Regulations

In 2013, Texas passed a law requiring abortion facilities to meet the same basic standards for medical equipment and staffing that surgical centers are required to meet, as well as requiring abortionists to have admitting privileges at a hospital within 30 miles. The legislation resulted in the closure of more than half the Lone Star State's abortion facilities—dropping the total number from 40 to 19.

These common-sense standards have been vociferously opposed by abortion activists who argue women have a constitutional right to abort a child up to and including the ninth month of pregnancy for any reason, without restrictions. This same camp says facilities should be exempt from these basic health standards, regardless of the many added risks that naturally occur inside those buildings.

The far Left claims Roe gives people a categorical license to abort babies, and that any state or federal law limiting that right is automatically and axiomatically unconstitutional. Some in the abortion camp say any restriction whatsoever creates an "undue burden" on abortion-minded women, and that Texas and other states with legislation like this are acting outside the law—which, of course, would seem to defy reason.

The pro-life community has been prudently incremental about meeting the constitutional bar in passing these state laws, and cares deeply about both the mother and the baby. The stories about the lack of basic standards and hygiene in abortion facilities has become a recurring national horror story, most notoriously in the case of the infamous facility run by Kermit Gosnell in Philadelphia.

In early February, a coalition of faith-based organizations—including the National Association of Evangelicals, the U.S. Conference of Catholic Bishops, the Lutheran Church-Missouri Synod and the Ethics and Religious Liberty Commission of the Southern Baptist Convention—filed an amicus brief at the Supreme Court supporting the law.

"There is ample evidence in this case that hospital admitting privileges and ambulatory surgical center requirements protect women's lives and health," they wrote. "When such requirements are not enforced, abuse detrimental to women's lives and health arise."

The case is officially called Whole Woman's Health v. Hellerstedt.

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Birth Control for Nuns?

The other case the Supreme Court is deciding, which it heard in March, is rooted in the ongoing debate about what the federal government may or may not mandate as part of the Patient Protection and Affordable Care Act (aka Obamacare). Allies of the White House continue to erroneously assert that Obamacare does not allow taxpayer funding of abortion. That is untrue. (In fact, the law forces taxpayers to foot the bill for it. Citizen and the rest of the team in the Public Policy division of Focus on the Family have covered this extensively over the past five years.)

The court will review whether employers such as the Little Sisters of the Poor must be compelled to pay for birth control pills, sterilization procedures and possible abortifacient drugs or face massive fines, regardless of whether religious liberty or conscience rights are being violated. The Little Sisters are a small order of nuns who provide nursing care for sometimes-destitute senior citizens.

Faith organizations that employ and serve only members of their own denominations—that would be churches—are exempt from the mandate. As far as other ministries are concerned, the federal government claims to accommodate them by forcing the groups' insurance companies to pay for the birth control measures, rather than having the ministries pay for it directly. This is a typical Washington-driven compromise that dents both constitutionally protected religious freedoms and conscience rights.

One federal court which has ruled on cases of this nature agrees that the Sisters' religious liberty has indeed been violated; the Supreme Court has taken up the appeal to adjudicate a consistent, national standard bringing an end to the current hodgepodge of rulings regarding Obamacare and religious freedom scattered nationwide.

Some people may believe this case should have already been settled, given that the Supreme Court in 2014 ruled that the owners of Hobby Lobby are free to run their business according to the tenets of their faith when it comes to the birth-control employer mandate. But the two cases are different in a key manner: Hobby Lobby is closely held family corporation; the Little Sisters are a non-profit ministry. For purposes of the law, this is a distinction in a host of significant ways.

Hobby Lobby was about whether for-profit organizations needed to be exempt; the Little Sisters case is about whether the current system actually does exempt faith-based organizations.

The outcome of this case is sure to have major national implications for conscience rights as the maw of Washington-directed health care expands and deepens.

It is both sad and disappointing that many of those who are pro-abortion continue to say they are puzzled about why this mandate is such a big deal to begin with. They say the Little Sisters should simply accept the Obamacare mandate whether it violates their consciences or not, and be satisfied that the American taxpayers, and not their ministry, are paying for those services. But the Little Sisters, and many other faith-based groups, Catholic and evangelical alike, say that is an unconstitutional edict and not acceptable under any circumstance.

But the Little Sisters case powerfully illustrates that this provision of Obamacare dare not stand because when religious liberties are insecure, and our most deeply held conscience rights are violated in federal law, then all our other precious liberties become insecure as well.

In this pivotal election year, it will be fascinating and illustrative to see how the nation's highest court decides two major cases where religious liberty and human life are so intricately interwoven.

Originally published in the May, 2016 issue of Citizen magazine.

© May 2016 Focus on the Family.