Constitution in 2020 Conference Panelists: Examining ‘Roe Backlash,’ Legal Challenges to Health Care Law’s Contraception Coverage

January 15, 2013

by Jeremy Leaming

Since issuing its landmark Roe v. Wade opinion expanding liberty 40 years ago this month, the debate over abortion has only intensified. Indeed, over the last few years state lawmakers have pushed for even more laws aimed at making it incredibly onerous if not impossible for many women to access the medical procedure.

So did the high court’s Roe ruling spark a backlash and if so, should supporters of marriage equality gird for a similar reaction if the Supreme Court rules in favor of marriage equality? In a post for Balkinization’s “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries” conference, ACS Board members Linda Greenhouse and Reva Siegel tackle the question and conclude, in part, that a backlash against reproductive rights was gathering before the high court issued its Roe opinion in January 1973.

Greenhouse, former Supreme Court correspondent for The New York Times, and Siegel, a distinguished professor of law at Yale Law School, write that the message emanating from the “premise of the Roe backlash narrative,” is that “minority claimants should stay away from the courts.”

But that message, Greenhouse and Siegel write, is not correct in all circumstances:

Of course, judicial decisions, like Roe and Brown, provoke conflict. The question is whether judicial decisions are likely to provoke more virulent forms of political reaction than legislation that vindicates rights. There was, is, and will be conflict over abortion, same-sex marriage, and indeed, the very meaning of equality. When minorities seek to unsettle the status quo and vindicate rights, whether in legislatures, at the polls, or in the courts, there is likely to be conflict and, if the claimants prevail, possibly backlash too. To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is no. The abortion conflict escalated before the Supreme Court ruled.

Greenhouse, Seigel and an array of other experts on liberty and equality will participate in panel discussions at the Jan. 18 – 19 conference at UCLA School of Law, which is part of the Constitution in 2020 project. (A schedule and listing of panelists is included at the end of this blog post.) See here for registration information.

Several of the Conference’s panelists are providing guest posts for Balkinization on topics likely to be discussed in detail or touched upon at the gathering. In another of those posts, the ACLU’s Louise Melling examines the legal challenges to the Affordable Care Act’s requirement that employers’ health care providers offer access to contraceptives. As Melling notes, there are a slew of lawsuits against the contraception policy, and many of them argue that employers’ religious beliefs should trump the ACA’s requirements on contraception.

Melling, a deputy legal director at the ACLU Foundation, says the cases pose fundamental questions, such as, “Does the right to religious freedom include the right to impose your views on others? Does it include the right to impose your views on a diverse workforce? On customers and patients seeking your services you offer the public? Does it include the right to close the door – in your office or your bakery or your emergency room – because you disagree with the person seeking services?”

Past court cases say no. “In every case, the principle of nondiscrimination was sufficiently compelling to override the religious objection,” Melling writes. She concludes that the “stakes now are every bit as critical” and hopes the courts will not sanction discrimination.

For more analysis of the lawsuits challenging the ACA’s contraception coverage policy, see the ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.” BYU law school professor Frederick Mark Gedicks argues, in part, that legal challengers have misconstrued the law on religious exemptions. The landmark health care law’s contraception coverage, Gedicks argues, is constitutionally sound because it is “religiously neutral, generally applicable law that does not discriminate against religious employers, does not entangle courts or government generally in disputes about theology or internal church governance, and does not ‘substantially burden’ religious exercise.”