5 Recent Supreme Court Rulings on Abortion and Religious Liberty

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By Michael J. DeBoer

Every June and July, the United States Supreme Court issues rulings in the cases that remain pending during the current term. And although the Court begins issuing rulings within a month or so of the beginning of a new term, which is the first Monday of October, the rulings issued in June and July are the most closely watched. These cases have typically attracted the greatest public attention and will likely reflect the greatest disagreement among members of the Court.

The Court’s June and July rulings of this term were no different, and they addressed a wide range of legal issues. However, five of the Court’s recent rulings will be of particular concern to Christian leaders, for they involved abortion and religious liberty. This article will briefly discuss these five rulings and the opinions issued by members of the Court.

June Medical Services LLC v. Russo

In Russo, the Court considered a constitutional challenge to Louisiana’s Act 620. Louisiana’s legislature passed this act to protect women’s health after the horrific conduct of abortion doctor Kermit Gosnell and the government’s lax oversight of abortion clinics came to light. (Read the Grand Jury report.) Louisiana’s act required doctors who performed abortions to hold active admitting privileges at a hospital located no further than 30 miles from where they performed abortions.

Four justices (Justice Breyer joined by Justices Ginsburg, Sotomayor, and Kagan) concluded that the plaintiffs (five abortion clinics and four abortion providers) challenging the admitting-privileges requirement had standing to bring the case and that the legislative requirement violated the United States Constitution by imposing an undue burden on the ability of women to obtain abortions. These four justices agreed that Louisiana’s law was unconstitutional. Breyer’s opinion did not, however, receive the support of a majority of the Court’s members, and consequently it is a plurality opinion.

Chief Justice Roberts concurred in the judgment that Louisiana’s admitting-privileges requirement was unconstitutional, but he disagreed with Justice Breyer’s reasoning. In his view, the legal doctrine of stare decisis required the Court to invalidate Louisiana’s statutory requirement because no special circumstances warranted overruling its decision in Whole Woman’s Health v. Hellerstedt (2016) that invalidated a similar admitting-privileges requirement in Texas law. Roberts concurred in Breyer’s judgment in Russo, even though he had dissented to the Court’s ruling in Hellerstedt.

Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented. Thomas argued that the plaintiffs lacked standing, that the Court lacked authority to decide the case, and that the text of the Constitution does not support the Court’s decisions on abortion. Alito, joined in different parts of his opinion by Thomas, Gorsuch, and Kavanaugh, contended that the plurality and Roberts erred in their reasoning and misused the doctrine of stare decisis and the applicable standard of appellate review. He also urged that this case should proceed only if a plaintiff who has proper standing is joined in the district court. Gorsuch and Kavanaugh also issued dissenting opinions that raise an array of concerns and note that five members of the Court in Russo rejected Hellerstedt’s cost-benefit standard.

Bostock v. Clayton County

In Bostock, the Court considered whether the protection against sex discrimination provided under Title VII of the Civil Rights Act of 1964 extended to adverse employment actions taken against two employees simply for being homosexual or transgender. Title VII, a federal law, makes it unlawful for an employer to fail or refuse to hire, to discharge, or otherwise to discriminate against a person because of that person’s race, color, religion, sex, or national origin.

Six justices (Justice Gorsuch joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) concluded that an employer who fires an employee merely for being gay or transgender violates Title VII because that employment action is taken at least in part because of that person’s sex. In explaining the Court’s ruling, Gorsuch addressed the concern that such a ruling would require some employers to violate their religious convictions. In addressing this concern, the Court noted that the United States Constitution enshrines the promise of the free exercise of religion and that Title VII’s exception for religious organizations, the First Amendment, and the Religious Freedom Restoration Act of 1993 (RFRA) provide religious liberty protections in the employment context.

Justices Thomas, Alito, and Kavanaugh dissented. Alito, joined by Thomas, argued at length and with supporting appendixes that the Court appeared to be interpreting a federal statute but that, in reality, it was legislating by giving new meaning to the term “sex” and updating the statute to better reflect the current values of society. Kavanaugh argued that Title VII did not prohibit employment discrimination because of sexual orientation or gender identity and that it is for Congress and the President to amend the law, not the Court.

These cases show that the Court is currently carefully attuned to religious-liberty issues.

Espinoza v. Montana Department of Revenue

In Espinoza, the Court reviewed the constitutionality of a Montana program that gave tax credits to those who donate to nonprofit organizations that award scholarships for private school tuition. Guided by a provision of the Montana Constitution that bars governmental aid to any school that is controlled by any church, sect, or denomination, the Montana Department of Revenue adopted a rule that prohibited families from using such scholarships at religious schools. Claiming discrimination based upon their religious views and the religious identity of the school they selected, three mothers sued the department for preventing them from using scholarship money to pay their children’s tuition at a Christian school. The Montana Supreme Court determined that the program violated the state constitution by aiding religious schools and that the entire program must be invalidated.

Five justices (Chief Justice Roberts joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh) concluded that Montana violated the Free Exercise Clause of the United States Constitution by discriminating against religious schools and families sending or hoping to send their children to them when the state applied the no-aid provision of its state constitution. In the Court’s view, religious schools were excluded from public benefits solely because of their religious identity. Because the state’s discrimination against schools was based upon their religious identity, the Court required Montana to show that its program advanced a compelling governmental interest, but it found that the state failed to do so. The Court also determined that Montana’s program broadly burdened both religious schools and families sending their children to them.

Although Thomas, Alito, and Gorsuch joined the Chief Justice’s opinion, they also wrote separate concurring opinions to emphasize specific points. Thomas, joined by Alito, contended that the Court’s interpretation of the Establishment Clause hampers free exercise rights by allowing that clause to be used to justify government infringement on religious freedom and that the Court’s interpretation should be corrected. Alito highlighted that the language of Montana’s no-aid provision was modeled after the failed Blaine Amendment to the United States Constitution and reflected anti-immigrant (especially anti-Catholic immigrant) animus. Gorsuch argued that the effect of the Montana Supreme Court’s decision was to shutter the school-choice program if a parent chooses to send a child to a religious school. In his view, the Constitution prohibits such discrimination whether based on religious status or religious activity.

Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented. Ginsburg, joined by Kagan, argued that, under the Montana Supreme Court’s ruling, Montana treated institutions and people neutrally when providing a benefit because both secular and sectarian schools were rendered ineligible. Breyer, joined in part by Kagan, urged that the Free Exercise Clause does not require Montana to allow parents to use taxpayer-supported scholarships to pay for their children’s religious education and that the state’s differential treatment of religious schools was constitutional. Sotomayor contended that the Court in this case resolved a constitutional question that was not presented (i.e., whether a Montana constitutional provision was facially invalid under the Free Exercise Clause) and then decided it wrongly by requiring Montana to subsidize religious schools if it enacts an education tax credit.

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

In Little Sisters, the Court revisited the so-called contraceptive-coverage mandate that has been implemented under the Patient Protection and Affordable Care Act of 2010 (ACA). In Burwell v. Hobby Lobby Stores, Inc. (2014), the Court determined that the mandate violated the RFRA by substantially burdening the free exercise right of closely held corporations with sincerely held religious objections to providing their employees with certain methods of contraception. In Zubik v. Burwell (2016), the Court declined to decide a RFRA challenge to the self-certification accommodation developed by the federal government as part of the mandate and sent the case back to a lower court with the hope that the parties could find an approach that would accommodate the differing interests. The government then developed rules to expand the church exemption and create a moral exemption for employers, and two states challenged these rules on procedural and substantive grounds.

Five justices (Justice Thomas joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh) determined that the government had the authority under the ACA to promulgate the religious and moral exemptions and that the rules were not procedurally defective. The Court also concluded that it did not need separately to decide whether RFRA independently required the exemptions. In a separate concurring opinion, which was joined by Gorsuch, Alito stated his view that the RFRA, which imposes a strict-scrutiny analysis, compels the government to exempt the Little Sisters and any other employer with a similar objection to the self-certification accommodation to the contraceptive-coverage mandate. Justice Kagan, joined by Justice Breyer, concurred in the judgment of the Court, but she urged a different basis for the government’s authority to exempt certain employers and questioned whether the exemptions can survive analysis under federal administrative law.

Justices Ginsburg and Sotomayor dissented. In her opinion, which was joined by Sotomayor, Ginsburg argued that the Court was allowing the religious beliefs and rights of some to overwhelm the rights of others and thereby creating an imbalanced result. She urged that thousands of women are left to fend for themselves and pay for contraceptive services out of their own pockets, rather than having all approved contraceptives covered by insurance as Congress mandated in the ACA.

Our Lady of Guadalupe School v. Morrissey-Berru

In Morrissey-Berru, the Court considered whether the ministerial exception to federal anti-discrimination laws (such as Title VII, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990) that the Supreme Court recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) applied to the employment-discrimination claims of two former Catholic school teachers. In Hosanna-Tabor, the Court determined that the First Amendment barred judicial consideration of an employment-discrimination claim brought by a former Lutheran school teacher who was called a “minister” in her position, had received religious training through a formal commissioning process, held herself out as a minister, and conveyed the church’s message in her teaching role. The teachers in Morrissey-Berru did not have a similar title or commission and had less religious training.

Seven justices (Justice Alito joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh) determined that the Religion Clauses of the First Amendment barred the employment-discrimination claims of these teachers. For the Court, it was important that courts abstain from involvement in employment disputes between religious institutions and those holding certain positions within them in order to safeguard institutional independence and avoid judicial entanglement in religious issues. Although the Court recognized that various factors determine whether a position comes within the ministerial exception, it explained that the key consideration is what an employee does. Functions such as educating students in a particular faith, inculcating its teachings, and training them to live their faith, the Court thought, are central to the mission of private religious schools. Accordingly, the ministerial exception applied to these teachers who performed vital religious duties and played a role in carrying out the religious mission of the schools. Thomas filed a separate concurring opinion, in which Gorsuch concurred, to emphasize that, under the Religion Clauses, courts must defer to the good-faith claims of religious institutions that particular positions are “ministerial.”

Justices Ginsburg and Sotomayor dissented. Sotomayor, joined by Ginsburg, argued that the Court’s approach lacked a basis in law and stripped thousands of school teachers of their protections under federal law. The ministerial exception, she thought, did not apply to the teachers in these cases because they taught primarily secular subjects, lacked substantial religious titles and training, and were not required to embrace the faith of the religious institutions in which they served.

What These Cases Mean for Christians

These cases show that the Court is currently carefully attuned to religious-liberty issues. In these cases, the Court honored the religious-liberty rights of organizations (religious schools and employers in Espinoza and Morrissey-Berru) and individuals (parents and students in Espinoza). In Little Sisters, it upheld exemptions to the contraceptive-coverage mandate that were designed to accommodate the religious and moral objections of some employers. Even in its Bostock ruling, which raises the greatest religious-liberty concern for employers, the Court showed sensitivity to the concern by highlighting legal protections that have a bearing in the employment context. The Court’s Russo ruling invalidating Louisiana’s law regulating abortion providers to protect women’s health is a disappointment, but Justice Breyer’s opinion did not receive the support of a majority of the Court’s members, and consequently its precedential value is lessened.

The Court’s rulings in these cases and the various opinions are sufficiently important to warrant additional reflection, and additional essays considering these cases and the implications will be published for Intersect readers in coming weeks.

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  • abortion
  • politics
  • religious liberty
Michael J. DeBoer

Michael J. DeBoer is Associate Dean for Academic Affairs and Associate Professor of Law at Faulkner University, Thomas Goode Jones School of Law. He holds degrees from Liberty University, Southeastern Baptist Theological Seminary, Valparaiso University, and Indiana University. He is currently pursuing a ThM in Christian Ethics at Southeastern Seminary.

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