Supreme Court Takes Up Monumental Abortion Case

The Court will also take up a major contraception case, telling us much about how the (male) justices view the role of women in society

The Supreme Court is taking up major abortion and contraception cases this term. Credit: JIM WATSON/AFP/Getty Images

All of a sudden, the Supreme Court is getting all up in women's business.

In the past week, the Court has agreed to hear two cases that, taken together, will tell us whether the (male) justices think women's place in American society is to be barefoot and pregnant, more or less.

Related: It's Justice Kennedy's World, and We're Just Living in It

1. Hobby Lobby, part two
It started last week with contraception. Following 2014's landmark ruling from the Court allowing arts-and-crafts giant Hobby Lobby to claim a religious exemption to the Obamacare mandate that employers cover employees' contraception as part of their health insurance, several religious non-profits figured they could get in on the Hobby Lobby game.

Obamacare has a special provision that accommodates religious non-profits by allowing them to file a short form that would exempt them from providing contraception to their employees. Once filed, this form triggers the government and the health insurer to work together, separate from the employer, to cover the employees' contraception. The exemption should make everyone happy – the employee still gets contraception covered in her insurance plan, the employer spends no money supporting what it considers immoral sex habits, and the government still meets its goal of having contraceptive coverage for almost everybody. It's a win-win-win arrangement that the Supreme Court pointed favorably to in the Hobby Lobby case.

But not so fast. Apparently filling out a short form and putting a stamp on the envelope to mail it is too much for some religious non-profits. They want nothing to do with icky, filthy, non-procreative sex, even if no real effort or money on their part is required. So they sued, claiming this accommodation violates their religious liberty, just like Hobby Lobby's. Almost every appellate court in the country agreed that this claim was absurd, but the 8th Circuit found otherwise in September. With the lower courts divided, the Supreme Court took the case last Friday.

2. A monumental abortion case
Not getting enough of women's reproductive health, on Friday the Court accepted a case out of Texas that could be the most important abortion decision in decades. The specific issue is whether the Constitution allows the second most populous – and second largest –state in the country to use sham health justifications to reduce the number of abortion clinics in the state from 42 to ten (or even fewer). The more general issue is whether, without making abortion illegal, the state can regulate abortion to near non-existence.

The Texas regulations at issue go by the innocuous sounding names of "admitting privileges" and "ambulatory surgical center requirements." But they are not at all innocuous. The first part of the Texas law requires doctors at abortion clinics to obtain admitting privileges at local hospitals, effectively giving hospital committees the power to shut down clinics. With many hospitals controlled by the Catholic Church, and others skittish about drawing anti-abortion protesters, most clinics in Texas were unable to obtain privileges for their doctors, despite abortion being one of the safest outpatient medical procedures in existence. The second part of the law essentially puts abortion clinics in the same category as hospital operating rooms and requires all sorts of incredibly expensive changes, none of which are in any way connected with patient health.

Despite the American Medical Association and the American College of Obstetricians and Gynecologists (and others!) flatly and loudly opposing these medically irrelevant requirements, the federal appeals court covering Texas found that they were constitutional and did not impose a "substantial obstacle" (the technical legal term) on a woman's right to choose abortion. No matter that a huge number of women in Texas would have to drive hundreds and hundreds of miles to access a clinic. The appeals court basically told Texas women, "Gas up that car and take a road trip – it'll be fun!" Of course, that ignores the realities of women's lives, particularly those who are poor and live in rural parts of the state. But then again, those are the women whose lives are the furthest from the experiences of the judges on the court.

The Supreme Court jumped into the fray a few weeks later and put the appeals court's decision on hold, so almost 20 clinics could stay open pending the Court's action. This week the Court decided it would hear the case later this term. (We don't yet know exactly when.) Because other states have been competing over who will impose the most drastic restrictions on abortion under the guise of protecting women's health, the decision in the Texas case will have broad ramifications nationwide. No matter what happens, Roe v. Wade should be safe… on paper. The reality, though, for many women around the country – particularly the most vulnerable – is that a ruling against the Texas clinics will turn the right to choose into nothing more than a theoretical. For many, abortion will be legal but almost completely inaccessible.

Putting these two cases together, it's impossible not to look at the bigger picture.  If the Supreme Court rulings result in women not having access to contraception and abortion, the Court may as well cast aside the legal niceties and deliver its decisions by simply saying, "Stay home, get pregnant, have babies."