A Decade-Long War
In 2013, the Little Sisters of the Poor rose to national recognition when they won their first victory over the contraceptive mandate at the Supreme Court. But their fight to serve the elderly poor without compromising their religious convictions didn’t start or end there. States like California and New York, as well as the federal government, have been relentless, insisting for over a decade that nuns (and other religious nonprofits) must pay for abortifacient drugs in their health plans or pay tens of millions of dollars in crippling fines.
Among the most ludicrous aspects of the Little Sisters’ fight is that in over a decade, their aggressors have not been able to identify a single woman who will lose contraceptive coverage if the Little Sisters don’t pay for it. These fights are not really fights over nuns and their healthcare plan but rather over expanding and solidifying abortion rights.
A Consequential Decision
When the Supreme Court decided the landmark abortion case, Roe v. Wade in 1973, it reached beyond the Constitution to establish a right to abortion. That decision has haunted many areas of the law, including the First Amendment where many cases arise because of abortion advocates seeking to expose and punish religious Americans with moral objections to abortion and contraceptive drugs. These proxy wars have been fought on at least four battlefields with direct implications for religious liberty: contraceptive and abortion mandates, pharmacist regulations, pregnancy center regulations, and restrictions on sidewalk counselors.
That’s how the Little Sisters of the Poor, and numerous other Becket clients, including Eleanor McCullen, a sidewalk counselor who went to the Supreme Court to fight for her right to speak to share her message of hope with women going into the abortion clinic; family pharmacies operated by people of faith like the Stormans family in Washington state and Luke Vander Bleek and Glenn Kosirog in Illinois that were forced to choose between selling the morning-after and week-after pills at their family-run pharmacies or lose their licenses; and Greater Baltimore Center for Pregnancy Concerns, which wanted to help vulnerable women without being forced to undermine its mission by displaying a sign that read “do not provide or make referrals for abortion or birth control services.”
These are just a few examples of unnecessary and often painful battles waged in both the courtroom and in the court of public opinion from California to New York, in the hospice rooms of nuns caring for the elderly poor and on the campuses of Christian colleges that teach their students all human beings bear the image and likeness of God – the landscape of the fight has engulfed almost every sector of our society.
It doesn’t have to be that way—other countries like France, England, and Germany—have experienced much less of this kind of abortion v. religious liberty conflict. But in the U.S., with abortion rights dictated by the Supreme Court, the conflicts have raged.
A Chance to end the unnecessary fights
Next term, the Court can correct the damage done to religious liberty in a case with a direct challenge to Roe v. Wade – Dobbs v. Jackson Women’s Health Organization.
In March of 2018, Mississippi passed the Gestational Age Act which restricts abortions after the 15th week of pregnancy. In response, the Jackson Women’s Health Organization filed a lawsuit against the State of Mississippi arguing that the law violated its rights under Roe v. Wade and Planned Parenthood v. Casey. After the State of Mississippi lost the case at both the district court and Fifth Circuit Court of Appeals, it appealed to the Supreme Court which agreed to hear the case in May 2021.
On July 27, 2021, Becket filed a friend-of-the-court brief in Dobbs, arguing that the Court should replace the Roe framework, thereby relieving the heavy burden imposed on religious liberty by abortion proxy wars, and opening the door to more productive solutions to religious liberty conflicts related to abortion.
On June 24, 2022, the U.S. Supreme Court ruled 6-3 in favor of the state of Mississippi, overturning Roe v. Wade. The decision puts the abortion debate back into the hands of the voters, lessens the battles between religious freedom and abortion, and better ensures Americans the right to live in accordance with their faith.
Importance to Religious Liberty:
The legal framework of Roe has haunted religious Americans ever since it was issued by the Supreme Court in 1973. Fewer national proxy wars over religious liberty and abortion will result from returning the abortion debate back to the states.