//  5/16/19  //  In-Depth Analysis

Take Care is pleased to host a symposium on Reproductive Rights and Justice Storiesan important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law. 

The story of religion and reproductive justice often follows a familiar arc. Roe v. Wade represented an affront to traditional sexual morality and religious conviction. In response, religious believers brought their faith into politics. Anti-choice politicians came to play the role of white knight defenders of the faithful.

From this vantage point, the Trump Administration stands at the forefront of religious liberty. The administration has sought to exempt large employers from compliance with the Affordable Care Act’s contraceptive mandate based on their religious or moral convictions. The Office of Civil Rights of the Department of Health and Human Services has prioritized protecting the religious beliefs of healthcare providers opposed to reproductive and other contested healthcare—including through a regulation announced just last week. New regulations for the Title X family planning program, while thus far enjoined, likewise propose to remake family planning in the image of a particular form of conservative Christianity. Any day now, HHS is expected to revise the ACA’s nondiscrimination rule to permit discrimination against LGBT patients and women seeking reproductive care—in response to a lawsuit by religious institutions. On this account, religion and health, faith and equality, come into inevitable conflict.

Reproductive Rights and Justice Stories resists this simplistic tale. While not an explicit theme of the book, faith and conscience cut across chapters. First, these stories indicate that restricting abortion access can both enshrine a particular religious doctrine and burden people of opposing faiths (or no faith at all). Melissa Murray’s retelling of Griswold v. Connecticut and its precursors raises a central issue for abortion regulation—whether it rests on any secular public reason or only embodies a singular religious perspective. Murray invites us to evaluate whether today’s reproductive health policies and restrictions simply aim to compel “moral and sexual conformity” without secular justification. The notion of compelling religious conformity also surfaces in the legal challenges to the Hyde Amendment, described in Khiara Bridges’ chapter. Excluding abortion from Medicaid, challengers argued, violated the Establishment Clause by enshrining in law one religious viewpoint and the Free Exercise Clause by preventing women from choosing abortion consistent with their own beliefs.

These chapters indicate the importance of surfacing and questioning the religious bases of health regulation during the Trump era. As an amicus brief of church-state scholars (which I joined) argues, the Trump administration’s whole-sale exemption for employers from the contraceptive mandate represents an overt religious favoritism barred by the First Amendment to the Constitution. By forcing employees to conform to and pay for employer’s religious practice, the new regulations impose serious burdens on the pocketbooks and religious freedom of employees. They represent not our long tradition of reasonably accommodating religious objectors, but the remaking of the United States to the image of a single religion.

Second, these stories highlight the erasure of the moral and religious reasoning of pro-choice people and of pregnant patients. The book queries: Who gets to tell the story? Why is the narrative structured as it is? Whose names do we know and who has been erased?

Reproductive Rights and Justice Stories gives voice to many women involved in the reproductive justice struggle. It invites scholars and advocates to dig deeper to understand what it means—as the hashtag says—to trust women. Particularly relevant to religion is Neil Siegel’s chapter on Struck v. Secretary of Defense, which offers a rich story of Captain Susan Struck’s religiously motivated refusal to have an abortion and her resulting discharge from the Air Force. Litigating on behalf of Struck, Ruth Bader Ginsburg argued that Air Force rules inflicted “particularly brutal force” on women who shared Struck’s Catholic faith—pitting her career in against her religious conscience. For a rare moment in constitutional litigation, the moral reasoning of a pregnant woman became visible. Only reproductive justice—in the form of employment protection—could enable her individual exercise of religion.

Today, by contrast, anti-choice leaders take center stage when we talk about religion and reproduction. We dwell on the consciences of providers and hospitals instead of on the pregnant patients—people who experience faith in myriad and complex ways. Of course, there is a long history of faith leaders supporting reproductive health—whether in the form of abortion, contraception, or expansion of insurance coverage. Notably, before Roe, the Clergy Consultation Service—consisting of hundreds of pastors and rabbis—helped women access safe abortion as a matter of moral obligation. These actors were largely male (and white). Pregnant women’s own voices and moral reasoning remain obscure.

The chapters in Reproductive Rights and Justice Stories reframe familiar narratives and invite us to reframe debates by establishing religion as a basis for reproductive justice. Leaders of the reproductive justice movement are already at work. For example, Toni Bond Leonard, a founder of the movement, and organizations like Sister Song and Faith Aloud describe drawing on religious conviction. Reverend Harry Knox of the Religious Coalition for Reproductive Choice explains “the truth is that most people of faith, like the majority of Americans overall, support access to contraception, comprehensive sexuality education, and reproductive health care — including abortion.” More forcefully, minister Darby Baxter argues that what is “sinful” is the failure of people in power to offer a comprehensive social supports that permit women and their families to make real choices that reflect their own convictions.

Lawyers and law professors must ask how we can amplify the moral reasoning of people as they make decisions about reproduction. Challenges to the contraceptive mandate illuminated the life stories and faith of the billionaire owner of Hobby Lobby and the nuns affiliated with healthcare systems. How might the story be told through employees and their dependents? How could their voices inform legal argument? What will convince judges and legislators to take the consciences of pro-choice people seriously?

These questions are hardly theoretical. Hoping for the reversal of Roe, states are preparing to punish women who obtain abortions or people who help them. Religious liberty protections might provide a defense. After all, when they anticipated the overturning of Roe, anti-abortion groups opposed the passage of the Religious Freedom Restoration Act (RFRA). They feared that RFRA would permit women access abortion on the ground that their religious convictions led them to seek the procedure. Only after the Supreme Court reaffirmed Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey did they support RFRA. If Roe is overturned, RFRA may prove a tool of reproductive rights, but only if we build the groundwork by recovering the history of religious reproductive justice and amplifying the moral reasoning of pregnant people.

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care

June Medical As The New Casey

6/29/20  //  Quick Reactions

As in prior abortion cases, the Chief Justice gave abortion supporters a victory while at the same time laying the groundwork for much weaker protections for abortion rights.

Leah Litman

Michigan Law School