The Risks Of Choice: The Politics of Contraception Exemptions

United States Supreme Court cases rarely have an immediate impact on political campaigns, but when they do, it is often an outsize impact. On March 25, the Supreme Court heard arguments on the Hobby Lobby case. This case could reshuffle the political deck. 

The question before the court is whether corporations are entitled to a religious exemption from providing contraception coverage to their employees. A decision is expected by June, leaving plenty of time for a sharp political reaction to set in before November’s elections. 

I will leave it to others to parse the case’s legal implications. For example, Justice Sonia Sotomayor’s query as to whether granting the religious exemption would allow an employer to deny a blood transfusion. Or whether knocking out the contraceptive mandate would open the door for white supremacist groups to form religious sects and then open restaurants seeking to deny public accommodation service based upon race. 

Justice Anthony Kennedy, who appears to be the swing vote in this case, posed difficult questions to both sides. He asked Hobby Lobby’s attorney whether it was proper for the employer’s religious views to trump the employee’s healthcare options. Kennedy asked the government if the law could mandate paying for an abortion. 

The court’s answers to all those questions will fascinate legal scholars. Meanwhile, the politics underlying the likely response of voters is quite predictable. 

In 2012 exit polls showed that the contraception debate helped to generate an 11 percent edge for Obama (55–44 percent) among the 53 percent of the nation’s voters who are women. Polling data just before that election also revealed that in swing states a high percentage of women saw contraception as a top-tier issue. 

Women could have a sharp reaction if contraceptive services were negated by their employer’s religious beliefs. A backlash is probable, leading married suburban women who practice contraception to turn against the Republicans they voted for in 2010, while also serving to spur higher turnout among the many single women who voted Democratic in 2012 but did not turn out to vote in 2010. Protecting a women’s right to make her own choices on contraception unites blue collar, minority, single and highly educated married women like almost no other issue. 

Overturning the contraception mandate could also morph into a major issue in New York’s gubernatorial contest. Gov. Andrew Cuomo strongly supports the codification of Roe v. Wade in his Women’s Equality Agenda. His likely Republican opponent, Rob Astorino, opposes that codification, arguing that Roe v. Wade is settled law. 

The dispositive reaction will be that of New York’s pro-choice majority; in May of 2012 a Quinnipiac poll showed that two-thirds of New Yorkers felt abortion should be legal in most or all cases, and in June of 2013 Quinnipiac’s polling showed New Yorkers in favor of late-term abortions when a women’s health was at risk by a margin of 68–22 percent. 

New York’s female majority will likely rally to Cuomo’s side if the court’s ruling on contraception puts doubts in their minds as to whether Roe v. Wade is truly settled law. After all, exit polls found 67 percent of women voted for Cuomo in 2010 and 73 percent of women voted for Gillibrand when she ran against a “pro-life” woman, Wendy Long, in 2012. In both elections women cast 53 percent of the state’s overall vote. 

Today we remember the Dred Scott decision mostly because of Lincoln’s Cooper Union speech. But in the late 1850s the sustained reaction against Dred Scott’s pro-slavery holdings enabled Lincoln to knit disparate political threads into a new Republican quilt. The Dred Scott case literally galvanized a new majority in American politics. 

A broad court-imposed prohibition on contraceptive rights could become another fireball on a hot summer night that wreaks cold political havoc for many Novembers to come. 

Bruce N. Gyory is a political and strategic consultant at Manatt, Phelps & Phillips LLP and an adjunct professor of political science at SUNY Albany.