Unified Field Theory: Affordable Care Act Supreme Court Oral Argument, Blunt amendment on religious and moral concerns, women's health, anti-contraception, and Presidential Power

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

I just checked the schedule and saw that the oral arguments for the Affordable Care Act challenges are the week of March 26, 2012.  All of a sudden, much of what appeared to be craziness made sense.  No doubt this is obvious to others, but in case it is not obvious I thought I would try to put this down.

I have heard some pundits wonder why there is such an attack on women’s right to control their bodies right now.  We see the efforts in states to place burdens on abortion such as we have seen in Virginia stoking the flames of the abortion battles.  We see the efforts to defund Planned Parenthood and limit access to it in other states and at the federal  level.  We also see the recently defeated amendment to the highway transportation  bill introduced by Senator Roy Blunt seeking an exemption to the Affordable Care Act for institutions and corporations who object on religious or moral grounds to providing such a service, with emphasis on contraception on those supporters of the Blunt amendment  and emphasis on protecting women’s reproductive health rights for those opposing the Blunt amendment.  I have noted the strident tone of Rick Santorum on rejecting the JFK vision on separation of church and state, religion’s role in the public square, and opposition to contraception and a similar emphasis by Mitt Romney in his support of the Blunt amendment.

Having heard it reported that 98 per cent of women use contraceptives, I have heard pundits wondering why such an effort against contraception would be done in an election year that would likely alienate large numbers of women voters.

So this morning, it occurred to me that the longstanding abortion battles energy was being drafted into the Affordable Care Act battles in the days just before the Supreme Court oral argument to influence that oral argument and decision which will be out this summer.

With the recent resounding defeat for the administration on the ministerial exception in employment at religious institutions cases and with the high stakes for both parties in the Supreme Court decision on the constitutionality of the Affordable Care Act still to come before the election, bringing a religious/moral dimension to the fight on the Affordable Care Act adds a First Amendment aspect to the case – maybe even triggering a higher standard of scrutiny and therefore tilting the stakes away from or toward one or the other party’s position.

In turn, all of this energy is about the battle for the Presidency in the fall election. So, like it is sometimes said in business, maybe the way to understand all this is that this is not personal, it is just business:  the business of politics.  And all of these things that are important to us mere mortals not in the halls of power are being instrumentalized in this death struggle for the prize of Presidential power.  And in such a struggle, that instrumentalization may alienate us mere plebeians is of little concern to those seeking to claim or hold onto a little longer the chalice of power.  Oh what a poisoned chalice it is.