By Bob Allen
The unexpected death of Justice Antonin Scalia looms large in cases currently before the Supreme Court concerning abortion and religious liberty concerns, says a lawyer who recently filed a brief asking justices to uphold a Texas law requiring abortion clinics to meet the same health and safety standards of walk-in surgical centers.
Michael Whitehead, former general counsel of the Southern Baptist Convention Ethics and Religious Liberty Commission, said in comments to Baptist Press that Scalia’s loss “is hard to overestimate” in cases like Whole Woman’s Health v. Hellerstedt, a major abortion case set for oral arguments March 2, and a number of cases combined challenging mandatory coverage of contraceptives under Obamacare filed by religious nonprofits including GuideStone Financial Services of the Southern Baptist Convention.
Whitehead said both cases are now likely to result in tie votes of 4-4, meaning the ruling under appeal stands unless the court decides to rehear the case a second time after a new justice is named.
The Supreme Court will hear oral arguments March 23 in seven cases challenging regulations in the Affordable Care Act requiring employers to cover preventive health care, including a full range of birth control options for women. Southern Baptist-related nonprofits including GuideStone, Truett-McConnell College, East Texas Baptist University, Houston Baptist University, Oklahoma Baptist University and Reaching Souls International claim Obamacare regulations substantially burden their religious liberty by forcing them to accommodate purchase of birth-control pills and devices that they believe induce abortion.
If the Supreme Court deadlocks 4-4, the organizations could face massive fines unless they include a full range of birth control options in their employee health plans or shift responsibility to a third-party provider by indicating they will exercise an option of opting out of that part of coverage intended to accommodate faith-based groups motivated by sincerely held religious beliefs.
If the abortion case ends in a tie, it would leave in place a decision by the Fifth Circuit Court of Appeals upholding a 2013 Texas law that experts say would reduce the number of abortion clinics operating in Texas from 40 to 10, but allow lower courts in other jurisdictions to disagree on constitutional questions addressed in the case.
Whitehead, general counsel for the Missouri Baptist Convention and lead attorney in several long-running lawsuits aimed at reclaiming control of former convention agencies that moved to self-perpetuating boards of trustees, filed a Supreme Court brief Feb. 3 on behalf of the state convention’s Christian Life Commission.
Whitehead, who as a young lawyer won an 1981 Supreme Court case defending a student religious group denied permission to meet for worship in facilities at the University of Missouri at Kansas City, joined lawyers representing the Center for Constitutional Jurisprudence and Christian Legal Society arguing that the appellate court correctly determined that the Texas law does not place an “undue burden” on a woman’s right to obtain an abortion.
The MBC Christian Life Commission voted Jan. 6 for just the second time in history to send an amicus brief to the U.S. Supreme Court in the first abortion-related case to reach the high court since 2007. Whitehead said in the Missouri Baptist newspaper The Pathway that it was important for Southern Baptists in the state to “speak clearly to our constituency” regarding abortion.
The story also cited concern that if the Supreme Court rules in favor of abortion clinics in Texas, it could lead to an increase in the number of abortion providers in Missouri.