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2016 Election and the Supreme Court


What a difference a year can make. This time last year, the reproductive justice community was in a state of despair because the Supreme Court had accepted for review two significant cases on opposite ends of the reproductive health system:

  1. Zubik v. Burwell – #contraception
  2. Whole Women’s Health v. Hellerstedt – #abortion

A year ago, the Court was a conservative majority of justices appointed by Republican presidents. In 2014, the Court had decided two cases – Hobby Lobby and McCullun v. Coakely - with verdicts that were disastrous to the reproductive rights movement.

Then, in February, Justice Scalia unexpectedly passed away, shifting the balance of the Court, moving it from conservative-majority to evenly divided.


Zubik v. Burwell

Zubik v. Burwell pitted the right of free exercise of religion against access to contraception. It asked whether a religious non-profit group could refuse to file a form letter with the Department of Health & Human Services to avoid covering its employees’ contraceptive care. Two years earlier, the Supreme Court had said in Hobby Lobby that this accommodation – this simple self-certification form – was the least intrusive means of balancing an employer’s right to refuse to provide contraceptive coverage on religious grounds with the government’s interest in providing cost-free access to contraception to employees. A number of religious non-profit groups then challenged this accommodation, claiming it made them complicit in conduct that violated their faith.

The Supreme Court – after Scalia’s departure – produced a split decision, 4-4 on this issue. The four conservative justices weighed in on the side of religion. The four liberals favored access to contraception. Unable to agree, they sent the case back to the lower courts for the parties to try to work out their differences. The Supreme Court basically abdicated its responsibility. It asked the parties to figure out how to accommodate the employers’ religious concerns while ensuring that the women employees received contraceptive coverage. In an unusual concurrence, two justices stressed that the decision should not be construed as a signal on where a full, 9 member Court ultimately would rule on this issue. Clearly, how these two competing interests will be balanced remains an open issue for the new Court, after Scalia’s vacancy is filled, to decide.

Whole Women’s Health

Whole Women’s Health involved two Texas abortion restrictions: a requirement that abortion clinics meet standards for ambulatory surgical centers and a requirement that abortion doctors have admitting privileges with a hospital within 30 miles of where they worked. When these laws were enacted, the number of clinics in Texas dropped from 41 to 18. The surgical requirements were stayed. If they had gone into effect, the number of clinics would have dropped to 7 or 8 for the 5.4 million women of reproductive age in that state. Closures meant fewer doctors, longer wait times, increased crowding and very long distances for women to travel to access care. The remaining facilities would have had to perform 5 times as many abortions. Particularly impacted were poor, rural or disadvantaged women. Although the case focused on just two restrictions, its outcome had implications for the enforceability of hundreds of similar laws nationwide that affected millions of American women.

Luckily, the Supreme Court did not duck the tough issues in Whole Women’s Health. Instead, Justice Kennedy, who has been a wobbler on abortion issues, sided with the liberal half, handing reproductive justice a solid 5 to 3 victory in the most significant abortion decision in decades.


If Clinton is Elected

If Clinton is elected President, the tide could turn even further. With a fifth liberal justice, the era of aggressive conservative legislation, largely upheld by a conservative Supreme Court, could be over. If the three most senior justices – all of which are 79 or older - retired, we could end up with a 6-3 liberal court. The repercussions of this shift play out in many arenas – the use of solitary confinement, the death penalty, campaign finance, voting rights, to name a few – but especially with reproductive rights.

Significantly, a liberal court places Justice Ginsberg as the most senior member in the majority. That position confers the right to decide who gets to author the majority opinion. With abortion, Justice Ginsberg could decide to ground the right as an issue of gender equality under the equal protection clause, which she has advocated for years. That could pave the way to increase abortion access for poor women.

With contraception and a number of other reproductive health care services that Catholic hospitals and other religious institutions currently refuse to provide, a liberal majority could make an even bigger difference. Right now, employers are using religion to avoid regulations they deem offensive to their faith. That was the argument made by employers in Hobby Lobby and Zubik to circumvent the Affordable Care Act’s mandate that businesses provide contraceptive coverage as part of their employees’ health insurance. A liberal majority limit this expansion of religious excuses for disregarding essential rights.

If Trump is Elected

Trump has already announced that if elected he would appoint very conservative, anti-abortion justices. He has said unequivocally that he opposes abortion and has even said that he would even go so far as to punish women who choose this option. He also plans on 'day one of his Presidency' to repeal Obamacare and, with it, cost-free contraceptive coverage that 55 million women use today.

Trump’s appointment of Scalia’s replacement would keep the court conservative and if the three most senior justices depart, a Trump court could end up 7-2 in favor of right-wing conservatives. For reproductive rights, that would be disastrous. The court could remain in conservative hands for decades, just as it has since 1971 when President Nixon appointed two justices. Supreme Court justices have life-time tenure, and most choose not to retire.

The Stakes

There is so much at stake in this election on so many fronts. But the stakes for reproductive health care, and the fate of Planned Parenthood health centers, could not be higher. We cannot risk adverse results on these critical cases. Otherwise, women in this country could have no access to cost-free contraceptive care, to abortion, and to other health care services such as sterilization or tubal ligation to which providers or employers have religious objections. The Supreme Court long ago recognized, as most of us know intuitively, that:

The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.

Thus, the very essence of our equality is tied up in the Court’s composition. We cannot let this year’s Presidential election irrevocably change that for the decades to come.

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