Editor’s Note: Ilyse Hogue is the President of NARAL Pro-Choice America and author of the forthcoming book, “The Lie That Binds.” The views expressed here are those of the author. Read more opinion on CNN.
On Wednesday, the Supreme Court gave a green light to the Trump administration’s rules allowing employers to deny their employees insurance coverage for birth control on moral or religious grounds. Unfortunately, that’s no surprise. The Republican Party has long opposed the birth control benefit in the Affordable Care Act, requiring coverage for birth control, and Republican leaders including President Trump have made it a priority to stack federal courts with judges hostile to social progress and ready to assert control over the bodies of women.
But what many found shocking is that this latest attack on Americans’ fundamental freedom to decide whether and when we bear children – a freedom that enjoys immense popular support – included liberal Justices Elena Kagan and Stephen Breyer, who joined in the 7-2 decision in Little Sisters of the Poor v. Pennsylvania.
This follows on the heels of last week’s decision in which Chief Justice John Roberts defected to side with the liberals on the first abortion case before the Court since Justice Brett Kavanaugh was confirmed.
But in reality, there’s no need to question everything you thought you knew about Supreme Court battles over women’s rights. These decisions seem surprising on the surface, but the fundamental battles over women’s control of their bodies are still right there underneath. If anything, it seems the right wing’s deeply unpopular project to restrict women’s freedoms has just been paused while dozens of cases await a hearing after the November election.
As I relate in my forthcoming book, America is now approaching the culmination of the radical right’s decades-long quest to dominate the judicial branch of government. Packing our courts with judges willing to disregard settled precedent to push their agenda has always been critical to their strategy. Since most Americans don’t support that agenda, it doesn’t play well in the more democratic legislative and electoral spheres. But if they can change our laws under the cover of fancy-sounding legal doctrines, the reasoning goes, they just might get away with it.
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They have painstakingly pursued this goal for decades, fostering a pipeline of young conservative lawyers through well-funded organizations like the Federalist Society. In President Barack Obama’s second term, they shifted into overdrive, as Senate Majority Leader Mitch McConnell’s months-long refusal to give Judge Merrick Garland a hearing for his Supreme Court nomination made headlines around the world. But that was only the most conspicuous piece of the obstruction. Under McConnell’s leadership, the GOP slowed down the process of confirming Obama’s nominees enough to leave vacancies throughout the federal courts, vacancies that Trump and McConnell wasted no time filling with right-wing ideologues, some of whom didn’t even have the basic professional qualifications for the job.
The recent case on abortion restrictions, June Medical Services v. Russo, presented the same legal issue as a case decided just four years ago, Whole Woman’s Health, in which the Court struck down onerous regulations that pretended to promote public health but were actually designed just to shut abortion clinics down. In that case, Chief Justice Roberts sided with the right-wing justices on the losing side of the case. But in June, Roberts chose to side with the liberal justices, knowing that defying such a recent precedent would be seen as a frontal assault on women’s reproductive rights, undermining his Supreme Court’s legitimacy and putting it front and center in this fall’s elections.
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Similarly, a close reading of Kagan and Breyer’s opinion in this case reveals they have not changed their positions on the fundamental underlying issues, they were just responding to the particulars of this case. Even as Kagan affirmed the Trump administration’s right to change the policy as a matter of administrative law, she also wrote, “I question whether the exemptions can survive administrative law’s demand for reasoned decision-making. That issue remains open for the lower courts to address.” Their votes in this case don’t signal a lack of support for reproductive freedom. Justices Breyer and Kagan were, for example, in the minority on the other side of the 5-4 Hobby Lobby v. Burwell decision about the birth control benefit back in 2014.
The bottom line here remains that the Court has given Donald Trump the ability to allow employers who wish to deny their employees access to no co-pay birth control – to, as Justice Ruth Bader Ginsburg put it in her dissent (joined by Justice Sonia Sotomayor), “leave women workers to fend for themselves,” thereby gutting a hallmark of the Affordable Care Act. This decision flew in the face of a majority of Americans’ values: birth control is not only medically and economically necessary, but is also popular. This fight will continue, as the states that challenged Trump’s rules have vowed to keep up the fight in the lower courts.
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But in the meantime, it’s imperative to understand that the right-wing mission to reassert control over people’s bodies remains a central goal of the Trump administration. It’s a particularly cruel agenda for those who already have the hardest time accessing medical care – including Black, Latinx, and Asian American and Pacific Islander communities, and undocumented Americans. They are those who will be impacted the most by Wednesday’s ruling, and they will be forced to pay the price for it.
Like so many Trump administration policies, this is very intentional discrimination – a deliberate ripping away of rights and freedoms from those who have been most oppressed throughout our nation’s too-often-checkered history, reversing our country’s progress under the Supreme Court’s banner of “Equal Justice Under Law.”
That’s exactly their end goal – rip away rights and freedoms, targeting those who have been most vilified and attacked the most throughout our nation’s checkered history, and preserve a regressive status quo.
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Thankfully, an election is coming and a resounding defeat for Trump and his cronies in the Senate can finally put a halt to their campaign of control and stop their relentless takeover of America’s courts.
