It is hard to find better plaintiffs than the Little Sisters of the Poor. Not even the “plump grandmas” challenging abortion clinic buffer zones in 2014’s Coakley v. Maryland can hold a candle to an international congregation of Roman Catholic women founded in 1839 with a mission to “serve the elderly poor in over 30 countries around the world.” Now, they are the public face of the religious right’s crusade against the birth control benefit in the Affordable Care Act. And as their attorney Paul Clement explained Wednesday to the remaining eight members of the U.S. Supreme Court in Zubik v. Burwell, the second direct challenge to the Affordable Care Act’s birth control benefit, had the sisters simply “stuck to their knitting,” they wouldn’t have been forced, as Clement put it, into the position of taking on the Obama administration over its attempts to provide seamless, no-cost contraception to millions of American women.
From my seat in the press section, I couldn’t see how Clement’s knitting comment went over with his clients, but I have to imagine it may have stung. Maybe I’m wrong, but nuns are typically on the front lines of Catholic activism. Clement’s reductions of his own clients’ activism to something other-than-knitting was telling as to the amount of respect the religious right pays to women’s agency. Which is to say, no respect at all—even when it comes to women on their own side.
Of course, there are more interests at stake here than the dozens of nuns in their habits—along with representatives from six other religiously affiliated organizations—who packed into the Supreme Court stands on Wednesday. There are also the hundreds of students and employees whose access to birth control is being put in danger. Whose should drive the Court’s analysis?
But as we’ve seen time and time again, for the conservatives on the Roberts Court, women’s autonomy is, at most, an afterthought. If Wednesday’s oral arguments offered any clue, that is a formula not changing soon.
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The activism of the Little Sisters, or the fact that religiously affiliated universities and colleges admit and employ folks of all religious orders, appeared to register very little to the conservative justices with an axe to grind with the administration, and especially the Affordable Care Act. As Chief Justice John Roberts quipped, for the Court, it’s not so much a question of facts as it is “really a question of who does the paperwork.”
The answer depends, of course, on whose interests the Court deems the most relevant.
In part, the fact that Roberts is even asking the question—who should bear the burden of paperwork—at all is a failure that reproductive rights advocates can hang on the Obama administration. Religious conservatives came out aggressively against the birth control benefit from the get-go. The administration has largely let those objections slide without response, presuming—as far as the Court is concerned—that a belief that contraception is an abortifacient is sincere, rather than drawing on the overwhelming scientific evidence to the contrary. The administration also has allowed, for the most part, religious conservatives’ beliefs that any act in the process of objecting to the birth control benefit substantially burdens their religion, even if that act relieves them of complying with the benefit entirely.
A framing like the one from Roberts should really concern activists, because it appears to remove the actual women affected by the benefit completely in favor of talk of logistics. Yet it is one the Court seemed ready to accept. When debating the myriad of “least restrictive” methods challengers presented as alternatives to the accommodation process, rarely, if ever, did the justices and attorneys engage in an honest exchange of realistic alternatives.
For example, both Clement and conservative justices like Alito suggested some alternative mechanism for providing contraception coverage that could meet the “least restrictive means” standard of determining whether the process was a violation of the Religious Freedom Restoration Act. That alternative mechanism was basically government-funded contraception, in the form of subsidized insurance policies available for consumers on the Obamacare exchange. “Let’s assume, for purposes of this case, that the government could provide contraception coverage directly,” posited Alito.
That setup—the hypothetical offered for argument’s sake—may work in law schools for student training, but it is a pretty crappy method for setting policy. That’s because it suggests that for this Court, and this case at least, the facts matter very little, and the political or popular culture appearances matter quite a bit. The fact that the Obama administration undertook multiple efforts to “seriously” accommodate religious objections to the benefit during the original passage is something that should be overlooked, claim the challengers. The only relevant question, according to Clement and the Little Sisters, is whether those efforts were sufficient from Clement’s perspective.
And they were not.
Let’s be clear here. The Supreme Court in issuing decisions is as much a director of policy as it is of law. For example, when it issues a decision like the one in Shelby County v. Holder where it gutted the Voting Rights Act without offering another alternative, it is as much instructing Congress how to act, or not act, as it is making a pronouncement on statutory law.
But let’s also be clear here that we have a hobbled bench— one comprised of eight justices more or less evenly split on ideological lines and held hostage to that current political composition until Congress decides to act in confirming another Supreme Court justice. And until we have a complete bench comprised of nine justices any opinion, even one that supports the government and its accommodation process to the birth control benefit, will be vulnerable to future scrutiny.
Should the Court split 4 to 4 along ideological lines, it would immediately mean the appellate court decisions supporting the accommodation process, with the exception of one, stand. That seems like good news for reproductive rights advocates. But the truth is it is half a win. It won’t be any kind of conclusion to the right’s war on contraception and contraception access. That’s because any opinion that leaves open further challenges to the accommodation is really no win at all.