McCullen v. Coakley: And a trio of fascinating new court cases about abortion, contraception, and speech.

Do We Have the Right to Choose How We Talk About the Right to Choose?

Do We Have the Right to Choose How We Talk About the Right to Choose?

The law, lawyers, and the court.
Jan. 15 2014 6:49 PM

Do We Have the Right to Choose How We Talk About the Right to Choose?

Three fascinating new court cases about abortion, contraception, and, also, speech.

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The main question before the court is whether Susan B. Anthony List has standing to pursue its lawsuit. But the court could possibly get to the issue of false campaign speech, and the case has thus been widely characterized as a plea from a pro-life group to be allowed to make false or at least deeply ambiguous statements in their political ads.

The third case, only tangentially involving pro-life speech, comes from another abortion opponent. On New Year’s Eve, Justice Sonia Sotomayor issued an injunction on behalf of the Little Sisters of the Poor Home for the Aged, Catholic nuns who operate nursing homes in Colorado and Maryland. The Little Sisters wish to be exempt from the contraception mandate under the Affordable Care Act, arguing that they face an unconstitutional religious burden by having to sign the form to opt out of the obligation. Their alternative was to face massive fines. Justice Sotomayor granted them a brief injunction and we wait to see what happens next.

The media frenzy around the injunction obscured the fact that the suit is in its earliest days, and—at least according to the inexhaustible Marty Lederman at Balkinization—the Little Sisters are not the most likely plaintiffs to prevail in their challenge to the ACA’s contraception mandate. An enormous amount of pixels have already been spilled around the merits of the Little Sisters’ claim. The nuns—who, to be clear, are already exempt from the mandate—claim that the act of filling out the self-certification form, showing them to be an objecting nonprofit religious organization, violates their religion. That’s because, in their view, the act of submitting the form would "direct" the third-party administrator of their health-insurance plan to provide contraception coverage to the Little Sisters’ employees. In simplest terms, they would trigger a sin by signing the certification. (In this case the third party administrator is also exempt, which makes this a trickier case.)


One element at play in the nuns’ and other Catholic institutions’ objection to a contraceptive mandate is the religious concept of “scandal”—Thomas Aquinas’ notion of “something less rightly done or said, that occasions another's spiritual downfall.” There is a religious requirement to speak and act in ways that encourage moral uprightness in others and discourage them from sinning. Some religious objectors contend that merely filling out the form violates the “scandal” doctrine. In other words, an important element undergirding these nonprofit exemption cases is a speech act of completing the exemption form.

Whether the act of opting out of the coverage requirement acts as a “trigger” for someone else to provide the religiously objectionable coverage or a release from a government obligation to provide it is almost a metaphysical inquiry, one that’s best left to the courts, or the angels. But it’s fascinating to note that the controversy surrounds the signing of a simple document that merely affirms, “I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.” That statement is a true fact, yet the act of signing it triggers a sin.

These three cases point up all the fascinating new ways that as a nation, we may be as divided about how we talk about abortion and contraception as we are about abortion and contraception themselves. The Massachusetts plaintiffs seek to curb government restrictions to counsel and pray for women seeking to terminate their pregnancies, even when that speech has been known to tip over into harassment and threats of violence. The Susan B. Anthony List seeks to stop government entities from adjudicating whether their political speech about abortion is false or misleading. And the Little Sisters and their colleagues at various Catholic nonprofits seek to be exempted from the government’s requirement that they opt out in writing from the birth control mandate. These are objections to the government’s attempt to limit the places and ways they may talk about abortion, the words they may use to talk about abortion, or to force them to affirm the words on a page that, in their view, may trigger an abortion.

That three anti-abortion groups are simultaneously petitioning the court for the right to talk to abortion patients who don’t want to hear them; to produce anti-abortion ads that may not be true; and to be exempt from the duty to affirm on paper that they object to abortion, speaks volumes. This is no longer just about where we are in this country on the right to choose, it’s also about how we choose to talk to each other about choice itself.