In the past week the U.S. Supreme Court (SCOTUS) decided two major cases that directly affect women. The first being McCullen v. Coakley, and the next Burwell v. Hobby Lobby Store, Inc.
SCOTUS unanimously struck down Massachusetts’ buffer zone law that created a 35 feet buffer zone around abortion clinics to protect patients from anti-choice protestors. The law was passed in 2000 after the shootings in 1994 that killed two workers and wounded five others at abortion clinics in Brookline, Massachusetts.
The 35 feet buffer zone was extended by Gov. Deval Patrick back in 2007. The extension from the previous 18 feet buffer zone was challenged in McCullen v. Coakley on First Amendment grounds by anti-choice opponents. The lead plaintiff, Elenaor McCullen claimed that the buffer zone violated her First Amendment right and prevented her from counseling and communicating with women walking to the clinic. The Court in the past has deemed sidewalks as traditional public forums allowing citizens to exchange ideas. The plaintiffs argued that the buffer zone prevented them from using public sidewalks to communicate with others. Massachusetts defended the law as a reasonable time, place, and manner regulation — similar to regulating the hours for garbage trucks in residential areas.
The Court in McCullen addressed whether the buffer zone law is way too broad, and valid under the Court’s decision from 2000 in Hill v. Colorado, which upheld Colorado’s law banning anyone within 100 feet of a healthcare facility,
“‘knowingly approach[ing]‘ within eight feet of another person, without that person’s consent, ‘for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.’”
The Court ruled that,
“the buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”
This means that the law was way too broad on free speech grounds. The Court reasoned that the similar laws can be upheld if they regulated certain types of conduct rather than banning people within a fixed distance. Such conduct can be something like harassing someone within a fixed protected area. In spite of the Court’s ruling against Massachusetts, the buffer zone laws in other cities or states can survive as long as they prohibit certain types of conduct, and aren’t as broad as the one from Massachusetts. According to the Guttmacher Institute, there are 12 cities whose buffer zone laws may be challenged due the Court’s new ruling.
Since the ruling, Marty Walz, President and CEO of the Planned Parenthood League of Massachusetts, has taken extra measures to keep patients safe. One of these measures has been to recruit volunteers to escort women to the clinics. Walz and the lawyers for Planned Parenthood are currently working with the state to develop measures to keep women safe from protestors. Visit Planned Parenthood’s volunteer page for information on how to get involved with your local Planned Parenthood healthcare facility.
Next, in a 5-4 decision the Court struck down the Affordable Care Act’s (ACA) contraception mandate for closely held corporations under the notion that it violated the Religious Freedom Restoration Act (RFRA).
The RFRA was passed by Congress in 1993 in response to the Court’s decision in Employment Division v. Smith (1990). In Smith, two Native Americans working as counselors at a private clinic consumed peyote as part of a religious ritual conducted by the Native American Church. Since peyote is considered a controlled substance under Oregon law, the respondents were fired. The counselors were denied unemployment compensation for violating Oregon’s law prohibiting the use of peyote, even if the drug was consumed for religious purposes. This led to the passing of the RFRA under President Bill Clinton. The RFRA said that,
“governments should not substantially burden religious exercise without compelling justification” and that “the compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”
In 1997, the Court ruled that Congress exceeded its authority in passing the RFRA. Following this ruling, many states passed their own versions of the RFRA. In spite of being held unconstitutional, the RFRA is applied by the federal government since Congress has the authority to create exemptions from federal laws.
Hobby Lobby, a craft chain store owned by the Greens has over 13,000 employees. Its sister chain, Mardel, Inc. has over 300 employees. The Greens wanted an exemption under the ACA that requires employers to provide for contraception. The Greens took issue with the morning after pill and similar emergency contraception.
“The Greens believe that human life begins at conceptions, that is when sperm fertilizes an egg, and therefore oppose certain contraceptives on the ground they prevent implantation of a fertilized egg.” [page 10].
The Greens believe that contraceptives such as IUD, Plan B, and Ella induce abortion, which violate their fundamental beliefs. According to Susan Wood, a former assistant commissioner for women’s health at the FDA, these products do not cause abortion and only prevent the need for one. Although there is some disagreement about whether the drug works before or after ovulation, Wood and many scientists don’t view this as abortion. Although Hobby Lobby objected to such forms of contraception, Mother Jones discovered that at the time Hobby Lobby filed its case against the contraception mandate, it had over $73 million invested in the very same contraception makers it opposed.
The ACA has exemptions in place for religious organizations and non-profits affiliated with such organizations. The Court examined such exemptions in relation to Hobby Lobby, and answered whether companies such as Hobby Lobby were substantially burdened by the contraception mandate, and whether the mandate represented a compelling government interest. In the majority opinion, Justice Alito revived the RFRA by stating the contraception mandate violates the owner’s the beliefs, and that the administration failed to apply a less restrictive means to achieve its goal. This only applies to closely held corporations such as Hobby Lobby. According to the Internal Revenue Service (IRS), a closely held corporation is defined as a company where more than 50% of outstanding stock is owned by five or fewer individuals.
Justice Ginsburg, in her now famous 35 page dissent argued that,
“in a decision of startling breadth…the exemption sought by Hobby Lobby and Conestoga…would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.”
Ginsburg took issue with the fact that the majority granted a for-profit corporation the type of religious freedoms means for individuals. Ginsburg continued to argue that the,
“government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children.”
Ginsburg’s dissent further brings up her concerns of the possible legal implications the majority’s decision can have in the future. Although the majority’s ruling was narrow, the decision sets precedent for issues in the future. It brings up the issue of how far the RFRA can be extended and pushed by employers. Does this mean employers can discriminate against an unmarried women for having children, or take up issue with anti-discriminatory practices that protect the LGBT community? The majority’s decision has already backfired when a group of religious leaderssent a letter to the Obama administration urging it to include religious exemptions for the LGBT anti-discrimination order.
