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On 40th Anniversary of Roe v. Wade, Why Talk about Birth Control?

Sarah Lipton-Lubet,
ACLU Washington Legislative Office
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January 25, 2013

This was originally posted on The American Constitution Society blog.

It’s been 40 years since the Supreme Court protected a woman’s right to make a decision about whether to have an abortion, and some are still trying to take that right away. In the world of abortion politics that’s dismaying — but certainly not shocking news.

It’s been longer still since the Court first protected the right to contraception in Griswold v. Connecticut in 1965. And while many of us in the reproductive rights movement have long known that our opposition is keen to limit access to birth control as well, that largely came as news to the public. Watching in disbelief, many turned to activism as the availability of affordable contraception was attacked time and again this last year. Indeed, recently national attention has been laser-focused on birth control — whether women should have insurance coverage for it, and what to do about the objections of employers who want nothing to do with it.

The federal contraceptive coverage rule — one of the greatest advances in women’s health policy in decades — guarantees insurance coverage of birth control, with an exception for houses of worship. Right off the bat a small but vocal opposition came out swinging, arguing that the rule is an unparalleled violation of religious liberty. These groups did not only want a sweeping set of loopholes, they pushed — and are still pushing — for the rule to be dismantled altogether, so that no woman would have its benefits, no matter where she works.

Now more than 45 lawsuits loom. The cases are all basically the same — bringing claims under the First Amendment and the Religious Freedom Restoration Act (RFRA) — and yet, like a bad zombie movie, they just keep on coming. The lawsuits challenge the contraception rule on the ground that it violates employers’ religious liberty to have to engage with insurance coverage for a health care service to which they’re religiously opposed. The argument fails on multiple fronts. The rule doesn’t target religion (the First Amendment inquiry), nor is it a substantial burden on religion (RFRA’s test) — opposition to someone else’s independent decision to use contraception doesn’t violate your religious liberty, even where you contribute indirectly to their access.

When it comes to court decisions, thus far the results have been mixed. Several federal district courts have dismissed the suits, holding that the connection between a business and its employees’ use of birth control is too remote to amount to a substantial burden, or that a company cannot exercise religion. Other courts have granted preliminary relief, preventing the rule from being enforced against individual plaintiffs until the entire case has played out because there’s enough of a likelihood that the plaintiffs will prevail. The lawsuits are now starting to be taken up by the courts of appeal, and creeping ever closer to an inevitable decision in the Supreme Court, most likely next year.

Try as the plaintiffs might to cast this as an issue of religion, a key value at stake in these cases is whether women have the ability to control their reproductive lives and equal access to health care services. As the Supreme Court explained in Planned Parenthood v. Casey, that ability is essential to women “participat[ing] equally in the economic and social life of the Nation.”

From Griswold, to Roe, to Casey, our courts have recognized that these personal decisions — the ability to take ownership of your own reproductive destiny — are inherent in the liberty and equality our Constitution protects. As we approach the next major reproductive rights case to reach the Supreme Court, the question now is whether those rights will be made subject to the religious beliefs of others.

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