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The Hobby Lobby decision was a victory for women’s rights

The Supreme Court has found a solution that is good for women and good for religious liberty.

Monday’s Supreme Court decision in Burwell v. Hobby Lobby could have been a disaster for women’s health and equality and, in the long run, for religious freedom. The Court cleverly devised a solution that avoided that disaster and decently accommodates the interests that had collided. The decision was a small victory for women’s equality – a core issue that many lower courts casually ignored.

The Affordable Care Act requires many employers to provide comprehensive insurance coverage, including contraception. Contraception can be expensive: an intrauterine device (IUD), one of the most reliable methods, can cost over $1,000. Hobby Lobby, a chain of craft stores, and several other companies objected to this requirement. The owners tried to run their businesses on religious principles, and they regarded some contraception as a form of abortion.

The federal Religious Freedom Restoration Act of 1993 (RFRA) prohibits the government from burdening a person’s exercise of religion unless that burden is the least restrictive means of furthering a compelling government interest. Hobby Lobby claimed, and many lower federal courts agreed, that the government’s interest in guaranteeing cost-free access to contraceptives was not compelling, because there are plenty of exceptions to the mandate. Obamacare exempts employers with fewer than 50 employees, which leaves 20 to 40 million employees uncovered. It does not apply to grandfathered plans, which cover millions more. An interest with so many exceptions, they reasoned, could not be a compelling one. Some of those courts also said that religious liberty could not be outweighed by a vague, generalized interest in “the promotion of public health”. One court was clueless enough to conceptualise the problem as one of determining the harm to the government if the exemption is granted.

The reasoning here is strained. The exemptions in question are mostly temporary. It is hard for a plan to keep its grandfathered status. More importantly, it shouldn’t be hard to decide whether the interests in question are compelling. When contraception is expensive, fewer women use it. Unintended pregnancies are awful for the women involved. They’re also bad for the children: women who don’t know they are pregnant are more likely to drink or smoke and less likely to get prenatal care. The contraception mandate improves the health of pregnant women and newborns, reduces the disparity in health costs between men and women, and, most importantly, allows women to determine the course of their own lives. Involuntary impregnation is one of the nastiest things that one human being can do to another. If promoting women’s health, bodily integrity, liberty and equality is not a compelling state interest, then what would be?

Some courts also concluded that, if Congress really wanted to provide contraception, it could pay for it itself. So they deemed the law to flunk the least-restrictive-means requirement. This rested on pure fantasy. Everyone knows that the Republican Congress will never vote such a subsidy.

In those now superseded decisions, the upshot was that women who worked for those employers – a lot of women; Hobby Lobby has over 13,000 full time employees – got no contraception coverage.

That made Hobby Lobby and other religious employers happy. But in the long run it would have been a disaster for religious liberty. That idea has always rested on the claim that one person’s religion doesn’t hurt anyone else. In Thomas Jefferson’s classic formulation: “[I]t does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

Had Hobby Lobby won on the grounds it claimed, however, religious liberty would suddenly mean the right to impose your religion on other people who don’t share your views. Such a pronouncement by the Court would certainly have strengthened the already growing secularist movement to eliminate any special legal protection for religious freedom.

Instead, the Court assumed, without deciding, that the government’s interest was compelling. Doubtless some members of the five-judge majority disagreed with that, but Justice Anthony Kennedy’s separate concurrence signaled pretty clearly that he thought so, and Justice Ruth Ginsburg’s dissent, for four justices, was even clearer. That’s a majority of the Court. So what could have been a disaster for women’s equality suddenly became a victory.

Having found a compelling interest, the Court moved on to least-restrictive burden. Here it ignored the bogus subsidy option, and noted instead that the Obama administration had crafted a clever solution for religious nonprofits. Those companies’ insurers were required to provide contraception in separate policies, for free – something the insurers were happy to do, because even expensive contraception is cheaper than childbirth.

The Court’s decision essentially required that the same accommodation be extended to religious for-profit employers. That will create some administrative headaches, which is why the administration resisted. But the alternative was imposing a heavy burden on the owners of Hobby Lobby, who clearly take their religious scruples very seriously.

Most importantly, as Justice Samuel Alito noted in his majority opinion, the burden on the women involved “would be precisely zero”. They will get the same free contraception that the challenged rule would have provided. In short: good for women, good for religious liberty. It’s a clever resolution that none of the parties had asked for, but that is better than anything on the menu that the Court had before it.

Andrew Koppelman is the author of The Tough Luck Constitution and the Assault on Health Care Reform and Defending American Religious Neutrality.

This article first appeared on


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Unite stewards urge members to back Owen Smith

In a letter to Unite members, the officials have called for a vote for the longshot candidate.

29 Unite officials have broken ranks and thrown their weight behind Owen Smith’s longshot bid for the Labour leadership in an open letter to their members.

The officials serve as stewards, conveners and negotiators in Britain’s aerospace and shipbuilding industries, and are believed in part to be driven by Jeremy Corbyn’s longstanding opposition to the nuclear deterrent and defence spending more generally.

In the letter to Unite members, who are believed to have been signed up in large numbers to vote in the Labour leadership race, the stewards highlight Smith’s support for extra funding in the NHS and his vision for an industrial strategy.

Corbyn was endorsed by Unite, Labour's largest affliated union and the largest trades union in the country, following votes by Unite's ruling executive committee and policy conference. 

Although few expect the intervention to have a decisive role in the Labour leadership, regarded as a formality for Corbyn, the opposition of Unite workers in these industries may prove significant in Len McCluskey’s bid to be re-elected as general secretary of Unite.


The full letter is below:

Britain needs a Labour Government to defend jobs, industry and skills and to promote strong trade unions. As convenors and shop stewards in the manufacturing, defence, aerospace and energy sectors we believe that Owen Smith is the best candidate to lead the Labour Party in opposition and in government.

Owen has made clear his support for the industries we work in. He has spelt out his vision for an industrial strategy which supports great British businesses: investing in infrastructure, research and development, skills and training. He has set out ways to back British industry with new procurement rules to protect jobs and contracts from being outsourced to the lowest bidder. He has demanded a seat at the table during the Brexit negotiations to defend trade union and workers’ rights. Defending manufacturing jobs threatened by Brexit must be at the forefront of the negotiations. He has called for the final deal to be put to the British people via a second referendum or at a general election.

But Owen has also talked about the issues which affect our families and our communities. Investing £60 billion extra over 5 years in the NHS funded through new taxes on the wealthiest. Building 300,000 new homes a year over 5 years, half of which should be social housing. Investing in Sure Start schemes by scrapping the charitable status of private schools. That’s why we are backing Owen.

The Labour Party is at a crossroads. We cannot ignore reality – we need to be radical but we also need to be credible – capable of winning the support of the British people. We need an effective Opposition and we need a Labour Government to put policies into practice that will defend our members’ and their families’ interests. That’s why we are backing Owen.

Steve Hibbert, Convenor Rolls Royce, Derby
Howard Turner, Senior Steward, Walter Frank & Sons Limited
Danny Coleman, Branch Secretary, GE Aviation, Wales
Karl Daly, Deputy Convenor, Rolls Royce, Derby
Nigel Stott, Convenor, BASSA, British Airways
John Brough, Works Convenor, Rolls Royce, Barnoldswick
John Bennett, Site Convenor, Babcock Marine, Devonport, Plymouth
Kevin Langford, Mechanical Convenor, Babcock, Devonport, Plymouth
John McAllister, Convenor, Vector Aerospace Helicopter Services
Garry Andrews, Works Convenor, Rolls Royce, Sunderland
Steve Froggatt, Deputy Convenor, Rolls Royce, Derby
Jim McGivern, Convenor, Rolls Royce, Derby
Alan Bird, Chairman & Senior Rep, Rolls Royce, Derby
Raymond Duguid, Convenor, Babcock, Rosyth
Steve Duke, Senior Staff Rep, Rolls Royce, Barnoldswick
Paul Welsh, Works Convenor, Brush Electrical Machines, Loughborough
Bob Holmes, Manual Convenor, BAE Systems, Warton, Lancs
Simon Hemmings, Staff Convenor, Rolls Royce, Derby
Mick Forbes, Works Convenor, GKN, Birmingham
Ian Bestwick, Chief Negotiator, Rolls Royce Submarines, Derby
Mark Barron, Senior Staff Rep, Pallion, Sunderland
Ian Hodgkison, Chief Negotiator, PCO, Rolls Royce
Joe O’Gorman, Convenor, BAE Systems, Maritime Services, Portsmouth
Azza Samms, Manual Workers Convenor, BAE Systems Submarines, Barrow
Dave Thompson, Staff Convenor, BAE Systems Submarines, Barrow
Tim Griffiths, Convenor, BAE Systems Submarines, Barrow
Paul Blake, Convenor, Princess Yachts, Plymouth
Steve Jones, Convenor, Rolls Royce, Bristol
Colin Gosling, Senior Rep, Siemens Traffic Solutions, Poole

Stephen Bush is special correspondent at the New Statesman. He usually writes about politics.