![]() In the longer term, however, ADF has made clear that it is far from safe. In the short term, access to birth control is likely to remain unchanged. ADF knows that at some later point, similar evidence might convince the Court that there is no right to contraception either. This kind of evidence convinced the Supreme Court’s conservative supermajority that there was no right to abortion. It was in the late nineteenth century, after all, that many states began criminalizing contraception, and that the federal government passed the Comstock Act, which made it a federal crime to mail contraceptives. But the “history and tradition” argument can apply even to drugs that even abortion opponents may concede are contraceptives. Some abortion opponents will argue that Dobbs already addressed the issue when it comes to many drugs-including the birth control pill-because those drugs count as abortion. It would not be hard for ADF to make the same argument about birth control in the future. Courts sympathetic to ADF responded that after Dobbs, the Constitution recognizes only rights that are deeply rooted in history and tradition-and that because gender-affirming care is new and experimental, there can be no deeply rooted right for parents to seek out that care for their children. Parents who have pushed back against these laws have argued that the Constitution protects parents’ rights to make decisions in their children’s own best interest. The “history and tradition” argument can apply even to drugs that even abortion opponents may concede are contraceptives.ĭobbs has become central to the defense of laws banning gender-affirming care for minors, many of which ADF had a hand in drafting. Other powerful antiabortion groups, like Students for Life, take the same position, suggesting that common forms of birth control actually prevent the implantation of a fertilized egg and thus qualify as abortion drugs. In Hobby Lobby, ADF already created the foundation for this new strategy: suggesting that religious employers had a sound reason for objecting to birth control drugs that might be abortifacients. Sears’ comments show that conscience claims can be the cornerstone of a new conservative incrementalism that erodes access to birth control and lays the groundwork for a future ban. The group has framed this cause as a fight for pluralism: just as the law should not force anyone not to use contraception, the law should not force employers to subsidize a pill they believe to kill a rights-holding fetal person. Hobby Lobby, ADF defended employers who believed that common contraceptives, including IUDs and the morning-after pill, to be abortifacients. ADF played a central role in fighting the contraceptive mandate of the Affordable Care Act, which required employers to cover all FDA-approved contraceptives without co-pay. Elenis, decided earlier this year, ADF convinced the Supreme Court that the Constitution permitted a Christian website designer to refuse to serve same-sex couples.Ĭonscience arguments have also transformed legal fights about birth control. Colorado Civil Rights Commission, decided in 2018, ADF claimed to defend the religious liberty of a baker who did not wish to bake a cake for a same-sex marriage. It has also made conscience arguments even more central to its work. ![]() Their solution: ban all reimbursement for all low-income patients-and suggest that the ban actually helped Medicaid patients by forcing them into a better choice.ĪDF is different from the first generation of antiabortion groups: it is openly Christian, and focuses on issues beyond reproduction. Reimbursing Medicaid patients with taxpayers’ money, they argued, violated the conscience of those with objections to abortion. But soon, abortion opponents found new uses for these arguments for conscience: Antiabortion lawyers and politicians relied on such arguments to support the Hyde Amendment, a ban on Medicaid reimbursement for abortion. At the beginning, these conscience rules enjoyed bipartisan support: a right to conscience resonated with both progressives committed to pluralism and conservatives uncomfortable with legal abortion. The Dobbs decision has become central to the defense of laws banning gender-affirming care for minors, many of which ADF had a hand in drafting.Ĭonscience arguments are the most familiar among conscientious objectors to war, but in the 1970s, antiabortion lawyers repurposed them to carve out exemptions for medical professionals who did not want to participate in abortions.
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