The emphasis must be not on the right to abortion but on the right to privacy and reproductive control. — Ruth Bader Ginsburg


Controversy rages on in U. S. society over the issues of religious liberty and sexuality. The right to marry, the destigmatization of homosexuality and reproductive freedom are issues that, historically and in the present, conflict with deep-seated religious beliefs and traditions in U.S. society. While the U.S. Congress and State Legislatures addressed these issues, especially in passing legislation to guarantee religious liberty, disputes concerning religious freedom and sexuality more often are settled by the courts. In 1967 the Supreme Court of the United States (SCOTUS) ruled state bans on interracial marriage were unconstitutional in Loving v. Virginia. In 2013, SCOTUS struck down the Defense of Marriage Act (DOMA) and refused to hear the appeal of Proposition 8 in California. This removed legal barriers to same-sex marriage. Homosexuality was decriminalized in the U.S. in 2003 when SCOTUS ruled on Lawrence v. Texas. Most recently, the decision handed down by SCOTUS in Burwell v. Hobby Lobby is generating heated discussion in the media and blogosphere. In this instance, SCOTUS ruled on a dispute between the issues of religious liberty and reproductive rights.

Christianity is the dominant religion in the U.S. and Christians in that society stand up for themselves in asserting their right to religious liberty. The National Council of the Churches of Christ in the USA, in 1944 (then Federal Council of Churches of Christ), agreed on the following definition of religious liberty:

Religious liberty shall be interpreted to include freedom to worship according to conscience and to bring up children in the faith of their parents; freedom for the individual to change his religion; freedom to preach, educate, publish and carry on missionary activities; and freedom to organize with others, and to acquire and hold property, for these purposes. (as cited in Wikipedia)

Legislators in U.S. society heed the demands of their devout, predominantly Christian, constituency. The Religious Freedom Restoration Act of 1993 (RFRA) was passed into law in a near-unanimous vote in Congress. The intention of this legislation is noted below:

to protect religious individuals and organizations against government interference with the practice of their faith. One can bring a lawsuit against the federal, state, or local government if s/he belief [sic] that laws or other governmental action substantially burdened their religious practices. In such actions, the government must demonstrate that its actions served a compelling interest and that there were no less restrictive ways to accomplish its goals. (USLegal)

Challenges to the sexual mores of U.S. society, concerning fertility, contraception and abortion began in earnest in the 20th-century, mainly through the efforts of Margaret Sanger. Sanger stood up to religious opposition, notably the Roman Catholic Church, in founding the American Birth Control League (ABCL) in 1921. Contraception caught on with the public in the U.S. and was widely used, though not legalized until 1965 when SCOTUS ruled in Griswold v. Connecticut. The Justices struck down a Connecticut law that prohibited any person from using “any drug, medicinal article or instrument for the purpose of preventing conception.” (as cited in Wikipedia).  The “right to marital privacy” were the grounds on which the Justices declared the law unconstitutional.

The right of unmarried couples to employ contraception was established in 1972 when SCOTUS ruled in Eisenstadt v. Baird. In this case, a law in Massachusetts, “Crimes against chastity” (Chapter 272, section 21A), prohibited the sale of contraceptives to people who were not married. The law was struck down as the Justices reasoned it was contrary to the 14th Amendment, the Equal Protection Clause, to the Constitution of the United States.

SCOTUS handed down its landmark ruling, Roe v. Wade, in 1973, that “legalized abortion in all trimesters when a woman’s doctor believes the abortion is necessary for her physical or mental health and held that only a “compelling state interest” justified regulations limiting the individual right to privacy.” (Wikipedia). As was the case in Eisenstadt v. Baird, the Justices reasoned restrictions on abortion were contrary to the 14th Amendment, the Equal Protection Clause, to the Constitution of the United States. Subsequent rulings handed down by SCOTUS in 1992, Planned Parenthood v. Casey, and 2007, Gonzales v. Carhart, made it lawful for states to enact laws proscribing abortion after the point of fetal viability and upheld the Partial-Birth Abortion Ban Act passed in 2003. In the last analysis, however, abortion remains legal in the U.S.

With the passage of the Patient Protection and Affordable Care Act (ACA) on 23 March 2010, the addition of contraception in 2011, that would be provided without patient co-payment, became a requirement for all new health insurance plans, starting in 2012. The ACA allows for religious exemptions that include churches and houses of worship, but does not include exceptions for “Christian hospitals, Christian charities, Catholic universities, and other enterprises owned or controlled by religious organizations that oppose contraception on doctrinal grounds.” (Wikipedia). Not surprisingly, this was seen as an attack on religious liberty by various religious interests, including the United States Conference of Catholic Bishops and different Evangelical Protestant Churches.

Among those opposed, is David Green, the CEO and founder of Hobby Lobby, a family-owned chain of 575 stores across the U.S. selling arts and craft supplies. Green and his family are Pentecostal Christians and conduct their business affairs by their religious principles. They believe life begins at conception and harbour a conscientious objection to abortion. They turned to the courts as they decided they could not, in good conscience, pay on behalf of their employees, for the contraceptives: Plan B (levonorgestrel), ella (ulipristal acetate) and copper intrauterine devices (IUDs), drugs and devices they believe are abortifacients.

In ruling in favour of the court challenge filed by Hobby Lobby, SCOTUS found the Patient Protection and Affordable Care Act, as it is written, runs afoul of the Religious Freedom Restoration Act of 1993. That Hobby Lobby–a family business–is required to pay for contraceptives, on behalf of its employees, contraceptives the owners of Hobby Lobby believe are abortifacients, constitutes laws or other governmental action [that] substantially burdened their religious practices. SCOTUS did not rule that these contraceptives are illegal; they remain lawful and for sale, in the U.S. The Justices, representing the position of the majority, pointing out that employees of Hobby Lobby who want these contraceptives can have them paid for by the federal government. They noted in their decision:

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative. (Syllabus)

In light of this ruling, the U.S. Congress will have to take another look at the Patient Protection and Affordable Care Act and make adjustments so that it does not run afoul of the Religious Freedom Restoration Act of 1993. The U.S. remains a society in which religious liberty and reproductive freedom are valued, as is demonstrated by the widespread use of contraception and practice of religion. This is but the latest development in the social life of the U.S. by which the mores concerning sexuality are changing, and as a society, the U.S. adjusts in striving to accommodate the respective interests. The legislative and judicial branches of the U.S. government continue to perform their respective roles in this process as the controversy rages on and these issues will be hotly debated for a long time to come.

Posted by Geoffrey



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