A Pro-Choice Majority Affects More than Abortion's Legality

Laura Hollis
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Posted: Mar 10, 2016 12:01 AM
A Pro-Choice Majority Affects More than Abortion's Legality

On the political right, the entirety of commentary seems devoted to Donald Trump's ransacking of the Republican Party and the corresponding abandonment of conservative principles. (For the record, the GOP abandoned conservative principles years ago, and now conservative voters have abandoned the GOP. Pretty simple.)

Some of Catholicism's leading lights are insisting that no believing Catholic can support Donald Trump. A number of Republicans are publicly saying that they will vote for Hillary Clinton if Trump is the Republican nominee.

Obscured by the widespread indignation (the righteousness of which is a subject for another column), are the implications for personal liberty if a victorious Hillary Clinton were to appoint another pro-abortion justice to the United States Supreme Court. Which, as president, she most certainly would do.

Pro-abortion activists love to yell about the perilous state of women's right to abortion. They always profess to be terrified that women who want abortions will not be able to obtain them. For those who don't care, therefore, or who don't want to have abortions themselves, the consequences of a pro-abortion Supreme Court seem limited to the largely uninteresting possibility that abortion will remain legal. *Yawn*

But the confluence of a number of trends makes clear that what's at stake is far more insidious than simply the ongoing legality of abortion. A pro-abortion Supreme Court must be viewed in light of the Affordable Care Act (which was not in place when any of the most important abortion cases were decided), the Department of Health and Human Services' pernicious regulations pursuant to the ACA, and other attacks on personal and religious liberties across the country.

As many readers will remember, the Green family, which owns Hobby Lobby, successfully sued to restrain the federal government from forcing them to provide four specific types of contraception required by the HHS mandate. The Supreme Court, in a 5-4 decision (in which now-deceased Justice Antonin Scalia joined), held that the Green family did not lose their religious rights under the Religious Freedom Restoration Act, simply by choosing to do business in a corporate form.

Hobby Lobby is not the only plaintiff. Dozens of cases have been filed by individuals and organizations objecting to the HHS contraceptive mandate. Most recently, the Little Sisters of the Poor, a Catholic religious order of nuns, have had their case taken by the Supreme Court, which will hear oral arguments in two weeks.

But the fight over contraception in the Hobby Lobby, Little Sisters of the Poor and other cases is just the tip of the spear. The coming battle will be over abortion as covered health care within the meaning of the Affordable Care Act. It is reasonable to expect that, just as they did with contraception, activists will soon argue that access to abortion (and physician-assisted suicide, by the way) is health care which is guaranteed by the Affordable Care Act. As was the case with contraception, this will become leverage to argue that all hospitals -- even religiously affiliated hospitals -- as well as clinics and professional physicians' practices provide abortions, the religious beliefs of their employees or owners notwithstanding.

This is not far-fetched. Comparable arguments have been made in other contexts, and those can serve as precedent. In Washington and Oregon, respectively, florist Barronelle Stutzman and bakers Melissa and Aaron Klein have had their businesses shuttered for refusing on religious grounds to provide flowers or cakes for gay weddings. State tribunals have held that religious beliefs could not justify "discrimination."

In California, pro-life pregnancy centers are being forced by state law to promote abortion clinics at their own facilities -- and over their religious objections. Even though information about abortion services is everywhere in California, pro-abortion activists argue that women are "entitled" to that information, and that pro-life centers are somehow therefore "obligated" to provide it.

It can and will be argued that women have a right to an abortion, that it ought to be covered health care within the meaning of the Affordable Care Act, and that any physician, clinic or hospital providing obstetric or gynecological services should be obligated to provide abortion as one among many services that they, as a business, make available to their patients.

Those who find this scenario implausible will no doubt point to the fact that abortion is already excluded from the ACA, and there are dozens of federal and state laws that purport to provide "conscience protections" on the basis of religious liberties.

True. But regulations can be rewritten. And even laws on the books must be interpreted and enforced, as a recent case in New Jersey demonstrated, when 12 nurses sued to avoid being forced to participate in abortions in violation of their religious beliefs. The nurses settled with the hospital. But a spokesperson for the ACLU called the nurses' efforts to protect their rights "discrimination," saying, "No woman should have to fear that medical staff will place ideology over duty or deny her care." That's the future, right there.

Any regulation requiring abortion to be provided by doctors, clinics or hospitals would certainly make its way up to the United States Supreme Court, where nine people would decide whether the right to abortion supersedes religious liberties. But if the Hobby Lobby case is any indication, religious liberties would face an uphill battle in a Court dominated by Obama and Clinton (Bill and Hillary) appointees.

One of the biggest hurdles facing anyone opposed to performing or providing abortions will be their status as a commercial enterprise. Justice Ruth Bader Ginsberg dissented vehemently in the Hobby Lobby case, arguing that religious beliefs were individual only, and could not extend to a business, even when that business was a closely-held (privately owned) corporation.

Ginsberg opened her dissent this way: "In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Nor were individual liberties sacrosanct in her view; Ginsberg further argued that neither the First Amendment, nor the Religious Freedom Restoration Act protects sincerely-held religious beliefs when they "significantly impinge on the interests of third parties."

A hospital is a commercial enterprise. Most medical clinics are commercial enterprises. A physician's practice is a commercial enterprise. It is no leap at all to anticipate the argument that these commercial enterprises have no protection for religious beliefs, and that those of their owners and employees can be overridden, because they significantly impinge on the rights of women to obtain abortions.

Ginsberg was joined in her dissent by Justices Breyer, Sotomayor and Kagan. One more justice, and that group enjoys a majority. If you think that someone's religious freedom not to provide abortions could not be overruled by a group of five pro-abortion justices, think again. And think of that, disgruntled Republicans, when you consider a vote for Hillary Clinton.