“Yesterday’s Home Runs Don’t Win Today’s Games”

July 14, 2016

So said Babe Ruth, and he was right. Let’s make no bones about it – Whole Woman’s Health was an incredibly welcome home run by the Supreme Court. In what is almost certainly the last abortion ruling with Justice Ginsburg, the most stalwart defender of women’s reproductive rights in the Court’s history, on the bench, we successfully fought back the latest attack by the religious Right on the right of a woman to control her own body.
As the weeks rolled on, we became less and less confident of getting a win in this case – it seemed more likely that the Court was hopelessly divided, and would come down 4-4, a decision which would have affirmed the Fifth Circuit, left the Texas law in place, and resulted in many of the women of that state being forced to travel hundreds of miles to obtain a safe and legal termination of a pregnancy. More than that, it would have reinvigorated the groups in the culture wars who see the Bible as a manual for government, rather than a private guide to personal conduct.
But, and there is always a but with Supreme Court decisions these days, the decision doesn’t end matters. What it does is enforce the current law – that any restriction on abortion rights, even if claimed to be for the protection of the woman seeking a procedure, may not impose an undue burden on the right to abortion. But this leaves the door very much open for similar legislation, with similar pseudoscientific justifications and evidence, seeking to close abortion clinics across the country. Texas has already pledged to rewrite the law; Alabama’s patently stupid ban on clinics within 2,000 feet of a public school, and on the use of dilation & extraction has just been blocked by a federal judge. So Texas will surely be back in court, as will the many, many other similar restrictions across the country.
Which brings me to the point of this piece. We’ve had recent victories in culture war battles, in particular regarding LGBT rights. With Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges, we have moved from a situation only thirteen years ago where states could imprison people for being gay, to one where marriage equality is the law throughout the fifty states. But it would be a terrible mistake to think either that the fight is done, or even that we have the upper hand in the battle. We still lose, such as in Hobby Lobby v. Burwell. And those losses often make new, regressive law, creating further opportunities for the religious right to impose its agenda onto the country. After Hobby Lobby, a religious person, or even a religious corporation, whatever that may mean, can claim an exemption from any law in the country based on a purely personal decision as to whether the law imposes a substantial burden on one’s religious beliefs. Hobby Lobby therefore went far beyond Obamacare and contraception – it created a new possibility for every religious group in the country to impose its beliefs on others. 
Even after the death of Justice Scalia, the Supreme Court is on a knife edge on major, key issues. While Justice Kennedy found the right way in Whole Woman’s Health, and has been a supporter of LGBT civil rights, he is more than willing to extend religious privilege and religious exemptions across the board. This Court has repeatedly shown an expansive view of Free Exercise, and a correspondingly weakened view of the Establishment Clause. It appears unlikely that any President would be able to replace Justice Ginsburg with anyone close to her. Not only do minds like hers come along very rarely indeed, I cannot see any situation where a Senate in the foreseeable future would approve of an ex-ACLU General Counsel joining the bench. 
This fall, the Supreme Court will hear the case of Trinity Lutheran Church of Columbia, Inc. v. Pauley. A negative decision here, which is a definite possibility, could go so far as to strike down Blaine Amendments – the state constitutional provisions that ban public funds going to sectarian groups – in entirety. At the very least, a loss would mark the first time when the Court approved of direct payments from a state treasury to a church, without any controls on how that money is spent. A loss would open the floodgates to the religious Right draining state funds away from secular programs, towards those that directly promote particular religious viewpoints. For that reason, CFI joined the ACLU and other of our allies in submitting an amicus brief in this case, which can be read here.
The fight will go on, and we will face a Supreme Court, and Circuit and District Courts, which are if not openly hostile, at least ambivalent to our quest for a truly secular America. The religious Right will be fighting on too, and groups such as the Becket Fund, Liberty Counsel, and the Alliance Defending Freedom will continue to have funding that makes secular groups drool with envy. Our advantage is much simpler. We are right. We have not only the correct understanding of the constitution, and the interaction between church and state, but also the one that works best for a society where religious belief is declining in popularity.
So let’s celebrate our win in Whole Women’s Health, but not for too long. The fight to defend reproductive rights and to roll back religious privilege continues unabated. There’s going to be more setbacks, more losses, more state attempts to impose and promote religion. As a secular group whose funding is dwarfed by that of the religious Right groups, there are many things we can’t afford. But as a secular movement, what we really can’t afford is complacency. We’ve had a great win. Let’s go get another.