The Washington Post

Supreme Court rulings to reverberate in midterm elections this fall

Supporters of employer-paid birth control rally in front of the Supreme Court before the decision in Burwell v. Hobby Lobby Stores was announced Monday. (Chip Somodevilla/Getty Images)

Following this week’s Supreme Court ruling that some businesses can refuse to offer contraceptive coverage to employees for religious reasons, a prominent antiabortion group used the case as an argument against Sen. Mark Pryor of Arkansas and other Democrats seeking reelection.

“In 2005, Sen. Mark Pryor voted AGAINST confirming Justice Samuel Alito, who authored Monday’s opinion in favor of religious liberty,” read one e-mail from the Women Speak Out political action committee.

In Ohio, meanwhile, Democratic gubernatorial candidate Ed FitzGerald blasted the high court for deciding that home health-care workers cannot be forced to pay union dues, using it to attack his opponent, Gov. John Kasich (R), as anti-union.

“As governor, I will stand up to efforts like these to chip away at the rights of middle-class families,” FitzGerald said.

A flurry of Supreme Court decisions this year on reproductive rights, executive power and other issues could play a prominent role in the midterm elections this fall, rallying base voters on both sides and laying the groundwork for the larger fight to come in 2016.

Some of the strongest reactions have come in response to Monday’s 5-to-4 contraceptive decision, which found that the owners of Hobby Lobby Stores do not have to provide insurance coverage for some contraceptives for their employees because doing so would violate their religious beliefs. The ruling prompted cheers from Republicans, howls from Democrats and fundraising pitches on both sides.

Labor officials are seizing on a series of adverse rulings, including the home health-care workers case, as reasons for voters to support pro-union Democrats in the fall. And many Republican candidates are citing Supreme Court decisions curtailing Obama’s use of executive authority as evidence that he has overstepped the bounds of his office — a popular rallying cry on the right.

“These Supreme Court decisions, it’s a reminder to people on our side of the aisle of the importance of the court, and then the importance of recapturing the Senate,” said Cleta Mitchell, a partner with the firm Foley & Lardner who represents several tea party groups and other conservative clients. “And the same is true for the other side.”

Kirk Adams, executive vice president of Service Employees International Union Healthcare, said in an interview that both the Hobby Lobby and union-dues rulings show the justices are “advantaging corporations and devaluing low-wage women workers,” a theme his union is already emphasizing for the midterms.

“It’s almost like a battle cry for us, that society doesn’t value their work, particularly if they’re women,” Adams said of the health-care workers’ situation. “It really kicks us in the butt and gets us out there to change the way people think about this work.”

Harvard Law School professor Richard Fallon said the high court rarely has had a major impact on off-year elections. But “if we’re in a new era of politics” in which the base plays an increasingly important role, he said, “it’s more possible that it would matter.”

Some of this year’s rulings could also resonate in 2016, when voters will be choosing a president who could alter the court’s makeup.

The last time a Supreme Court ruling reverberated loudly in off-year elections was when the 1989 Webster v. Reproductive Health Services decision allowed Missouri to limit the state’s support for abortion services, which alarmed abortion-rights supporters. Their activism buoyed Virginia Democrat Doug Wilder’s successful gubernatorial bid that fall and helped other Democrats such as Rep. James P. Moran of Virginia and Gov. Ann Richards of Texas.

Richards’s daughter Cecile, who serves as president of the Planned Parenthood Action Fund, said that while she was disappointed in the Hobby Lobby ruling, “if there is a silver lining to this it is that women are engaged and enraged.”

Planned Parenthood has collected more than 158,000 signatures on its Join the Dissent petition this week, and more than 4.3million people had viewed the group’s Facebook post about the contraception decision within the first 24 hours of the ruling.

Emily’s List, a political action committee supporting female Democratic candidates who back abortion rights, highlighted the ruling as part of its end-of-the-quarter digital fundraising appeal, raising more than $100,000.

The Susan B. Anthony List, which backs candidates from both parties that oppose abortion as well as certain birth-control measures such as intrauterine devices and Plan B, experienced an almost nine-fold increase in social-media engagement by its supporters after the Hobby Lobby ruling.

“The question is whether the usual playbook from the feminist left is going to work,” said Susan B. Anthony President Marjorie Dannenfelser, adding that the strategy had run its course. “There is something very off about the ‘war against women’ message. . . . Contraception is not abortion, and women recognize it is widely available.”

The Hobby Lobby ruling is likely to resonate more than other Supreme Court decisions this fall because Democrats and Republicans are already fighting over the Affordable Care Act, the health-care law at the heart of the case.

North Carolina House Speaker Thom Tillis (R), who is challenging U.S. Sen. Kay Hagan (D), tweeted Monday, “Today’s SCOTUS rulings were a win for our 1st Amendment freedoms, a loss for Hagan, Obama, & DC bureaucrats.”

Ilyse Hogue, president of NARAL Pro-Choice America, said her group is highlighting Tillis’s support in some instances of protections for a fertilized egg, known as “personhood,” which was part of the basis for Hobby Lobby’s legal challenge.

In Colorado, the campaign of Sen. Mark Udall (D) launched a Web site Wednesday attacking his opponent, Rep. Cory Gardner (R), for co-sponsoring a bill in Congress giving protected status to fertilized human eggs.

Gardner — who says he no longer supports the language used in Colorado’s personhood ballot initiatives — praised the court’s decision Monday as a victory for religious liberty. But he also urged the administration “to move quickly to make oral contraceptives available to adults without a prescription.”

Matt Canter, communications director for the Democratic Senatorial Campaign Committee, said “both sides are spending real dollars on television talking about this debate.”

Lanae Erickson Hatalsky, who directs the social policy and politics program at the centrist Democratic think tank Third Way, said several moderate Democrats in competitive races — including Hagan, Sen. Mark Begich (Alaska) and Kentucky Secretary of State Alison Lundergan Grimes, who is challenging Senate Minority Leader Mitch McConnell (R) — were much more comfortable talking about the contraception ruling than an earlier decision striking down some limits on abortion protesters.

“There’s much more common ground in these red states” on contraception, Hatalsky said, adding that the issue could be particularly important for female Senate candidates such as Grimes, Michelle Nunn of Georgia and Natalie Tennant of West Virginia.

“In those states, women’s votes are going to be a linchpin, and this plays to their advantage,” Hatalsky said.

But Tim Phillips, president of Americans for Prosperity, a conservative group, said Democrats invoke the contraception ruling “at their own peril” because it is “wrapped up” in the health-care law, which remains unpopular.

He also said several unanimous court decisions could help Republicans, including one finding that Obama overreached in making recess appointments and another banning searches of an individual’s cellphone without a warrant. Phillips said those rulings “add to a narrative that a president is on such an ideological crusade that he’s ignoring the Constitution.”

“This narrative brings President Obama even more deeply into the day-to-day discussion in these races,” he said. “In most races, that’s not helpful.”

At least one group of Democrats is trying to make the very issue of federal judges more of a focus in elections: Washington lobbyist Robert Raben founded the Fair Judiciary PAC a year and a half ago. The group has bundled roughly half a million in donations so far to Democratic senators such as Sheldon Whitehouse (R.I.), Christopher A. Coons (Del.) and Elizabeth Warren (Mass.), who have worked to seat progressive federal judges

“The selection and confirmation of federal judges is a political act, and we are bringing politics to it,” Raben said, adding that liberals are more skilled at blocking conservative judicial nominees than advocating for their own appointees. “We are working to connect very busy Americans to what is a, frankly, opaque question: the role of the Supreme Court and the role of federal judges in their life.”

Still, both Canter and his counterpart at the National Republican Senatorial Committee, Brad Dayspring, said there are many other issues that will help decide the fall election.

“Supreme Court conversations may dominate newsrooms in Washington for a few days, but conversations at kitchen tables across the country are focused on bigger things,” Dayspring wrote in an e-mail. “Are things going well? How is my job going? Why are things so expensive? Why is Washington such a disaster?”

Juliet Eilperin is The Washington Post's White House bureau chief, covering domestic and foreign policy as well as the culture of 1600 Pennsylvania Avenue. She is the author of two books—one on sharks, and another on Congress, not to be confused with each other—and has worked for the Post since 1998.

The Freddie Gray case

Please provide a valid email address.

You’re all set!

Campaign 2016 Email Updates

Please provide a valid email address.

You’re all set!

Get Zika news by email

Please provide a valid email address.

You’re all set!
Show Comments
The Democrats debated Thursday night. Get caught up on the race.
The Post's Chris Cillizza on the Democratic debate...
On Clinton: She poked a series of holes in Sanders's health-care proposal and broadly cast him as someone who talks a big game but simply can't hope to achieve his goals.

On Sanders: If the challenge was to show that he could be a candidate for people other than those who already love him, he didn't make much progress toward that goal. But he did come across as more well-versed on foreign policy than in debates past.
The PBS debate in 3 minutes
We are in vigorous agreement here.
Hillary Clinton, during the PBS Democratic debate, a night in which she and Sanders shared many of the same positions on issues
South Carolina polling averages
Donald Trump leads in the polls as he faces rivals Marco Rubio and Ted Cruz heading into the S.C. GOP primary on Feb. 20.
South Carolina polling averages
The S.C. Democratic primary is Feb. 27. Clinton has a significant lead in the state, whose primary falls one week after the party's Nevada caucuses.
62% 18%
Fact Checker
Trump’s claim that his border wall would cost $8 billion
The billionaire's claim is highly dubious. Based on the costs of the Israeli security barrier (which is mostly fence) and the cost of the relatively simple fence already along the U.S.-Mexico border, an $8 billion price tag is simply not credible.
Pinocchio Pinocchio Pinocchio Pinocchio
The complicated upcoming voting schedule
Feb. 20

Democrats caucus in Nevada; Republicans hold a primary in South Carolina.

Feb. 23

Republicans caucus in Nevada.

Feb. 27

Democrats hold a primary in South Carolina.

Upcoming debates
Feb 13: GOP debate

on CBS News, in South Carolina

Feb. 25: GOP debate

on CNN, in Houston, Texas

March 3: GOP debate

on Fox News, in Detroit, Mich.

Campaign 2016
Where the race stands
Most Read


Success! Check your inbox for details.

See all newsletters

Close video player
Now Playing

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.