1 Introduction
In June 2014, the Supreme Court handed down their ruling in Burwell v. Hobby Lobby, a case involving a challenge to the 2010 law, the Patient Protection and Affordable Care Act (PPACA, which will here-in after be referred to as ACA). For-profit corporations challenged the requirement that health insurance plans with prescription coverage include all Food and Drug Administration (FDA)-approved forms of contraception. These corporations argued that this mandate violates the protections of religious liberty established in the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (RFRA). The court ruled in favor of the plaintiffs, finding the requirement was a violation of federal law, because it created a substantial burden on the religious beliefs of the corporate entities in question. The ruling opens the possibility for further restrictions on abortion that are based on the protection of individualsâ right to religious liberty. Thus, although the case focused specifically on the employer mandate, many in the pro-life movement view this ruling as a victory in their struggle to limitâand eventually eliminateâthe right to abortion.
The debate over abortion has always included discussion of the rights of third-party actors who are secondary in the procedure itself; the right of medical professionals to refuse to participate in abortion or abortion-related services had been established since the 1970s. Specifically, the Church Amendment was adopted in 1973, prohibiting government officials from requiring physicians to perform abortion or sterilization based upon moral or religious objections to the practice. Further, restrictions on public funding for abortion were also first enacted during the 1970s, with the first prohibition on government funding for abortion passed in 1976. The Hyde Amendment, attached to the 1976 spending bill for the Departments of Labor, Health and Human Services, and Education, prohibited funding for abortion, primarily affecting Medicaid programming. Both conscience clauses and funding restrictions on abortion continue to be enacted at both the federal and state levels. Furthermore, both types of policies have greatly expanded over time in terms of the effect and breadth of the protections and restrictions imposed.
These two types of public policies have proven to be the most effective means for restricting or limiting access to abortion, particularly at the federal level. Nevertheless, until the case of Hobby Lobby, the pro-life strategy rarely focused on the rights of third-party actors. Prior to the Hobby Lobby case, the pro-life movement centered its attention on the rights of the fetus and the rights of women, the two subjects involved in the abortion procedure. In advocating for fetal rights, the primary focus and intent of the pro-life movement has been to eliminate access to abortion and secure the overturning of the decision in Roe v. Wade. This strategy, based upon the belief in the sanctity of life and the assumption that life begins at the moment of fertilization, represented the central focus of the movement until the mid-1990s. The failure to secure this goalâthe complete elimination of the right to abortionâas well as the inability to produce any substantial change in public opinion regarding abortion led to the adoption of a new strategy. This new strategy focuses on womenâs rights and well-being, arguing that abortion physically and emotionally harms women. As a result, this strategy focuses on limiting access to abortion rather than eliminating it altogether. The development of the women-centered strategy has demonstrated that the pro-life movement is adaptable to changing circumstances and contexts, using new arguments and strategies to promote their cause.
The passage of the ACA in 2010, and the Hobby Lobby ruling in 2014, led to the adoption of new strategy by the pro-life movement, which complements the fetus-centered and women-centered strategies. This latest strategy advocates for the rights of third-party actors such as employers, with a special focus on the argument of religious liberty. As such, the ruling in Hobby Lobby introduces two main changes into the earlier pro-life discourse and its related public policy. First, the ruling shifted attention from rights that were traditionally at the heart of the debate over reproductive choicesâsuch as the right to life, womenâs liberty and autonomy, and reproductive rightsâto religious liberty. Specifically, both the fetus-centered and women-centered discourses aimed to change peopleâs opinion on abortion through emphasis on the sanctity of life as well as the harm abortion causes women. The focus on freedom of religion, however, shifts the argument away from the debate over the meaning and implications of abortion; in this case, supporting the pro-life movement does not require people to oppose abortion, only to agree that individuals have the right to freedom of religion, or, more generally, freedom from government control. In addition to the changing argument, the focus on religious liberty also represents a shift in pro-life strategy; while the movement has historically been driven by religious adherents who believe in the sanctity of life because of biblical dictates, the movement as a whole has worked to minimize the use of religious arguments, particularly in their public campaigns and fetus-centered discourse. Including religious liberty as a right that is violated during the course of an abortion adds to the issues that are part of the debate over reproductive rights, while also allowing the pro-life movement to further distinguish their work from that of the pro-choice movement.
Second, this ruling introduces a new set of actors in need of protection in the practice of abortion. Initially, the pro-life movement focused solely on the protection of the fetus, placing the movement in opposition to the pro-choice movement, which advocates for womenâs reproductive choice and autonomy. This fetus-centered discourse often defined women as the source of the threat, situating them in direct conflict with the fetus that needs to be saved. Through subsuming womenâs rights and health within their discourse in the 1990s, the pro-life movement was able to address the critique of pro-choice activists, as well as others who demanded that womenâs complex decision-making process is taken seriously. With the Hobby Lobby ruling, the pro-life movement expands the participants they will protect, adding employers to the other third party actors they aim to protect. This new group is unique in the subjects it adds to this debate; while the fetus, the mother, as well as health-care professionals are all directly involved or play a role in the procedure in some way or another, employers do not have a direct or active role in the abortion process. Therefore, their inclusion as third-party actors significantly broadens the range of participants whose rights need to be considered in this debate; it now includes persons with religious objection to abortion.
As this account shows, the pro-life movement has expanded the claims made and subjects it protects, creating a complex and broad pro-life strategy that is more inclusive now than ever. These shifts and transitions are quite unusual in the abortion debate as the pro-choice movement is often criticized for its stagnant and unchanging arguments (Calmes 2014; Eckholm 2011; Loonan 2003). At the same time, the pro-life movement has been able to remain relevant, maintaining its support despite the shift within the American public toward greater acceptance of libertarian positions, such as support for same-sex marriage and the legalization of drugs (Leonhardt and Parlapiano 2015). Within this context, this book examines the evolution of the pro-life movementâs strategy from the post-Roe v. Wade era through the Burwell v. Hobby Lobby ruling in 2014, to reveal the ways in which this movement has remained effective. Through analysis of the evolution of the pro-life discourse and public policy outcomes concerning access to abortion, this project provides three main contributions to the existing research on reproductive rights in particular, and right-wing politics in the USA in general.
First, this book traces the development of the pro-life strategy, analyzing its relationship to and use of the human rights framework and arguments. From 1973 to 2015, we argue, the pro-life strategy can be divided into three separate time periods, each with a focus on different subjects in need of protection, either by the stateâas in the case of the fetus and womenâor from the state, as in the case of medical professionals, taxpayers, or employers. This shift in discourseâfrom one that focuses on protecting the fetus to one that protects the rights of women, and then employers and their right to religious freedomârepresents an expansion of the number of subjects with rights-based claims in the debate over reproductive rights. By using these discourses or rights-based claims to complementârather than replaceâeach other, the pro-life movement has increasingly gained public support through representing and advocating for the various participants directly and indirectly involved in the procedure itself. Understanding the development of the pro-life discourse within the framework of the human rights discourse explains both the justification of these arguments and the increasing legitimacy surrounding the claims offered by the pro-life movement.
The second contribution of this project is the analysis of the relationship between this pro-life discourse and public policy outcomes. This examination demonstrates that the shift in discourse has been shaping public policy outcomes, as well as, in some instances, conflicting with existing pro-life policies. The fetal rights discourse, predominant in the 1970s and 1980s, continues to be one of the most commonly used strategies today. However, it has resulted in few political gains for the movement, and has had little effect on public opinion regarding abortion. This failure led to the shift in focus to womenâs rights and health concerns in the mid-1990s, an approach that resulted in greater political success for the pro-life movement. However, while these victories were manifested in policies that place various barriers or impediments to womenâs access to abortion, they were neither designed, nor able, to prohibit the practice altogether. This gradual, incrementalist approach created tension within the pro-life movement, corresponding to the conflict and tension present within the conservative movement; the shift toward protecting and promoting womenâs rights resulted in policies that require greater government intervention and oversight, an approach at odds with the libertarian faction of the GOP. However, while the policy was highly conservative in nature, the public discourse on women-centered issues often combined libertarian and conservative arguments. The final discourse, or the claims raised in Hobby Lobby, introduces new actors to the debate, yet a familiar, libertarian discourse remains. These arguments focus on limiting government intervention in reproductive matters, or keeping the government from mandating insurance coverage of contraception. However, while this latest discourse is clearly libertarian, abortion-related public policy during this time period reflects both libertarian and conservative ideals.
The third contribution of this project is the analysis of the current tension within right-wing politics, through an examination of the case of the pro-life movement. We argue that the Hobby Lobby case and the discourse and policies that follow from it are representative of ...