For two years, Republicans have rallied against the Affordable Care Act's (ACA) provision that health insurance plans cover the full range of contraceptives approved by the Food and Drug Administration, charging that the rule is an assault on religious liberty.
Next week, when the Supreme Court hears oral arguments in two legal challenges to the contraception requirement, the issue of religious freedom will be front and center.
Lawyers for one of the companies challenging the law, a crafts store chain called Hobby Lobby, open their brief to the court with the contention that "this is one of the most straightforward violations" of religious free exercise that the court is likely to see.
But for political activists on both sides -- and perhaps for the justices themselves -- it all comes down to the decades-old left-right battle over birth control.
Republicans have been careful to make religious liberty -- not contraception -- the centerpiece of their objection to the requirement. The GOP does not want to be seen as the anti-birth control party, still fighting the culture wars of the 1960s.
Despite the careful messaging, however, moral objections to contraception are running just below the surface of the action. Cultural conservatives believe contraception is a scourge on society, while women's rights groups argue it is a fundamental aspect of both women's health and equality.
That is evident from the amicus briefs filed in the two challenges (Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius) in which religious conservatives make clear their hostility to contraception per se.
Take the American Freedom Law Center, a conservative public interest law firm that is also representing religious employers in two separate challenges to the ACA. To explain their case that providing contraception coverage would violate a Catholic employer's faith, the firm’s brief includes a quote from Pope Paul VI on "the immorality of contraceptive practices."
“Thus, it has come to pass that the widespread use of contraceptives has indeed harmed women–physically, emotionally, morally, and spiritually — and has, in many respects, reduced her to the 'mere instrument for the satisfaction of [man’s] own desires,'" the brief continues.
"Consequently, the promotion of contraceptive services — the very goal of the challenged mandate — harms not only women, but it harms society in general by ‘open[ing] wide the way for marital infidelity and a general lowering of moral standards.’ Responsible men and women cannot deny this truth.”
(One of the authors of the brief, David Yerushalmi, is also a leader in the anti-Shariah movement, warning that Islamic Law is a menace to Americans' freedoms.)
In another brief, a coalition of conservative nonprofits and religious ministries takes aim at the Institute of Medicine (IOM), which recommended that the ACA cover the full range of contraceptive services, a recommendation that the Department of Health and Human Services adopted. "[T]he IOM Committee Report encourages amoral recreational sex without reproductive consequences to be the optimal 'quality of life' and 'life course orient[ation]' for all American women," it reads.
The blog Feministing.com rounded up a number of similar quotes from conservative amicus briefs like these.
Meanwhile, as the November midterms approach, Democrats and women's groups know that access to contraception is a popular issue for them and a toxic one for Republicans. For them, the religious liberty argument is a smokescreen obscuring a conservative effort to turn back the clock on women's rights.
"Over the past few years, we have seen an all out assault on birth control by politicians and special interest groups and now bosses who are trying to make it harder for women to get access," Cecile Richards, the president of Planned Parenthood Action Fund, said Thursday, calling the legal challenges part of a broad battle over "women's rights."
Women have "had enough of this conversation being about the concerns of bosses like Hobby Lobby CEO David Green and not the tens of thousands of workers who will be at the mercy of their employers if the plaintiffs get their way," said Ilyse Hogue, president of the women's rights group NARAL [National Association for the Repeal of Abortion Laws] Pro-Choice America. "Where are their stories? Where do their lives figure in?"
It's a point women's groups plan to make as the oral arguments to the court get underway. "You're going to see a remarkable sight on Tuesday at the Supreme Court rally," Hogue said. About 1,000 protesters are expected and NARAL will bring a banner bearing the names of thousands more supporters.
"You will hear stories, you will see names," she said. "Our bodies are not our bosses' business."
On Tuesday, the culture war over birth control might stop at the Supreme Court steps. Ultimately, however, the court may not be able to escape this underlying debate. Despite the talk of religious rights and corporations that will dominate the oral arguments, the legal analysis may come down to how the the nine justices feel about birth control.
First, the court must decide whether corporations and/or their owners have free exercise rights under the Religious Freedom Restoration Act. If the court says yes, it must proceed to whether the mandate is, as claimed, a "substantial burden" on the companies' religious rights.
If the court agrees the requirement is a substantial burden, it has one more question to answer: Does the government have a compelling interest to impose this burden?
And here it comes down to a value judgment. The justices must decide how important access to cost-free contraceptive coverage really is.
For women's advocates, this is a no-brainer. "Advancing women's health and equality is such a compelling interest," said Marcia Greenberger, co-president of the National Women’s Law Center.
Louise Melling, deputy legal director of the American Civil Liberties Union, put the question in the context of previous civil rights movements. "Courts, in other contexts, have already said no to companies that didn't want to provide services to African Americans because of the business's religious views," she said on the call. "The courts have already said no to schools that wanted to provide greater benefits to men than women because of their religious views. The courts should say no again here."
Conversely, the challengers to the law and the politicians who support them feel the religious burden is paramount. In its final analysis, however, the Supreme Court's opinion may also be informed by the value a majority of the justices place on contraception.
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