Trump allies have proposed that the government should promote ovulation-tracking methods of birth control, which are far less effective than the methods now covered.
A decade-old Supreme Court case looms over this fall’s pivotal presidential election, in which reproductive rights may well take center stage. In 2014’s Burwell v. Hobby Lobby, the court held that religious business owners could decide, based solely on their own religious beliefs and contrary to established medical evidence, that certain contraceptive methods cause abortions. And based on that religious belief alone, they could opt out of covering the cost of contraceptives in their employee health care plans, overriding a federal requirement under the Affordable Care Act.
Hobby Lobby was a landmark case for the Christian right. It granted conservative evangelicals long-sought “religious freedom” rights or, viewed another way, troubling special privileges. It was also an early warning sign that Republicans have more cataclysmic plans afoot for elevating the “religious freedom” of a small faction. Trump’s base wants Trump because he’s their messianic hero, but also because he enables a small bloc of religious zealots to use the government to impose their biblical worldview on everyone else.
The scale and scope of their aspirations are now coming into focus. In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade in 2022, conservative movement hero Justice Clarence Thomas wrote that the court should next take aim at Griswold v. Connecticut. Thomas’s call to overrule this 1965 case that struck down state laws criminalizing the sale of contraceptives to married couples shocked many Americans. But this has long been a commonplace view on the American right. Conservative legal scholars and Christian right activists have claimed that the privacy right the Griswold court recognized is not in the Constitution. The truth is that privacy rights conflict with theocracy.
Republican lawmakers and Christian right advocates are not sitting on their hands while waiting for Thomas’s wish to be fulfilled. Democratic lawmakers, spurred by Thomas’s concurrence, have sought to enshrine the right to birth control in the law. But in more than a dozen states, Republican legislators have blocked these efforts, citing the very bit of disinformation the high court endorsed in Hobby Lobby: that certain Christians believe, contra the entire medical establishment, that IUDs and emergency contraception cause abortions. Trump allies drafting the blueprint for his next presidency have proposed making that lie official government policy, so any employer could opt out of providing contraception coverage. They have proposed that the government should promote ovulation-tracking methods of birth control, which are far less effective than the methods now covered. On an even grander scale, Trump allies are hoping to revitalize the Comstock Act, an 1873 anti-obscenity law rendered dormant by Roe, and use it to criminalize the sale through the mail of abortion pills, contraceptives and more.
The truth is that privacy rights conflict with theocracy.
A small glimmer of hope emerges from a legal effort, whose plaintiffs include many Jews, to turn Hobby Lobby on its head. Earlier this year, an Indiana appellate court unanimously held that the state’s abortion ban, enacted after Dobbs, violated the religious freedom of plaintiffs including the group Jewish Hoosiers for Choice. The law’s challengers brought their case under the state’s Religious Freedom Restoration Act (RFRA), a state replica of the federal statute at issue in Hobby Lobby. Their argument: If RFRA can be used to protect the religious rights of people who oppose abortion, why can’t it be used to protect the religious rights of those who support it?
Because Jewish law teaches that a fetus is not an independent person with rights, a ban granting protection to a fetus from the moment of conception or fertilization presents a clear violation of the freedom of a Jewish person to choose an abortion. Indiana state lawyers tried to argue that getting an abortion is not a “mandatory ritual” like keeping kosher or observing Shabbat. But the appellate judges eviscerated that argument in short order. Procuring a health insurance plan for your employees is not a mandatory religious ritual either, they pointed out, but it was “core” to the Hobby Lobby holding.
Similar lawsuits have faced opposition from red state lawyers. Kentucky state attorneys recently prevailed on their motion to dismiss a lawsuit brought by three Jewish women against that state’s abortion ban. “Jews do not consider life to begin at conception; this religious belief is forced on them by the government,” the women’s lawyers have argued to the court.
“Kentucky’s laws are Christian in origin and design and impugn the faith of Jewish Kentuckians.”
All of these cases are far from final resolution. A favorable result in any of them could protect some people’s abortion rights and access to contraception as well. Meanwhile, though, their long-overlooked arguments should motivate everyone to recognize the Republican “religious freedom” crusade for what it really is: a war on freedom, religious and otherwise.
Sarah Posner is the author of Unholy: How White Christian Nationalists Powered the Trump Presidency, and the Devastating Legacy They Left Behind.
Opening picture: Religious liberty advocates rally outside the U.S. Supreme Court while waiting for the court’s decision in the Burwell v. Hobby Lobby case. (Photo credit: American Life League / Flickr CC BY-NC 2.0)
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