Under the accommodation, the objecting employer gets out of the picture, and the obligation to provide the contraception coverage passes to its insurer; the employer has no further involvement. The religious nonprofit plaintiffs in the new cases object that simply requesting the accommodation is the first step in a chain of events that retains their complicity in the sin of enabling any eventual contraception use by their employees. The government maintains — and the four appeals courts whose decisions are now under review agreed — that this attenuated concern can’t be the basis for depriving employees of a government benefit intended for all women. (Another appeals court recently became the first to rule for the religious nonprofit employers, but not in time for that case to be part of the group the Supreme Court accepted three weeks ago.)

Under the Religious Freedom Restoration Act, once a burden on a religious practice or belief is deemed “substantial,” the government must justify it as serving, as precisely as possible, a “compelling interest.” The majority in the Hobby Lobby decision was willing to assume, without any discussion, that government’s interest in making contraceptives broadly available without cost was compelling; the majority then found that the interest could be served with the necessary precision by offering the opt-out accommodation. It fell to Justice Anthony M. Kennedy, in a concurring opinion, and to Justice Ruth Bader Ginsburg, in a dissent, actually to explain what was compelling about the government’s interest “in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for male employees,” to quote Justice Kennedy. An employer’s religious beliefs could not be permitted to “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling,” he wrote then.

Sex and women: Justice Kennedy is the last remaining member of the trio of justices (the others were Sandra Day O’Connor and David H. Souter) responsible for preserving the right to abortion in the Casey decision 23 years ago. The opinion he co-authored then insisted that although the state could express its preference for childbirth over abortion, from the beginning of pregnancy, through a variety of regulations aimed at influencing a woman’s decision, women retained the right to choose abortion. It is the unwillingness of legislators in Texas and other states to live with the compromise that Justice Kennedy was instrumental in crafting that has finally brought the abortion issue back to the court.

Sex, women and religion. I said earlier that these were what the court’s two new cases have in common. The first two are obvious, the third maybe not. The contraception case is obviously about religion. The Texas abortion case comes clothed in the state’s concern for women’s health, ostensibly to be protected by requiring perfectly well-functioning clinics to be retrofitted at great expense as mini-hospitals and doctors to obtain unnecessary and unattainable admitting privileges at local hospitals. (Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in an opinion issued on Monday striking down a similar admitting-privileges requirement in Wisconsin, observed that such measures “do little or nothing for health, but rather strew impediments to abortion.”)

Abortion opposition has been Republican Party dogma for so long that it’s easy to regard the position as simply a natural part of our domestic politics. But its origins are religious to the core, and so is the source of its current energy, even if judges are too diffident to base their decisions on that fact, or even to comment on it. The last justice to do so was the invaluable John Paul Stevens, whose consistent voice in favor of a robust understanding of the First Amendment’s Establishment Clause I miss more with each passing Supreme Court term.

In 1989, a case from Missouri reached the court that concerned several abortion restrictions the state had enacted along with a legislative preamble declaring that “the life of each human being begins at conception.” In the decision that resulted, Webster v. Reproductive Health Services, the court avoided a ruling on the constitutionality of the preamble, observing that its actual relation to any Missouri law was uncertain and that the state courts had not yet clarified the matter.