The Supreme Court in Washington DC. Photo: Getty
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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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The SNP thinks it knows how to kill hard Brexit

The Supreme Court ruled MPs must have a say in triggering Article 50. But the opposition must unite to succeed. 

For a few minutes on Tuesday morning, the crowd in the Supreme Court listened as the verdict was read out. Parliament must have the right to authorise the triggering of Article 50. The devolved nations would not get a veto. 

There was a moment of silence. And then the opponents of hard Brexit hit the phones. 

For the Scottish government, the pro-Remain members of the Welsh Assembly and Sinn Féin in Northern Ireland, the victory was bittersweet. 

The ruling prompted Scotland’s First Minister, Nicola Sturgeon, to ask: “Is it better that we take our future into our own hands?”

Ever the pragmatist, though, Sturgeon has simultaneously released her Westminster attack dogs. 

Within minutes of the ruling, the SNP had vowed to put forward 50 amendments (see what they did there) to UK government legislation before Article 50 is enacted. 

This includes the demand for a Brexit white paper – shared by MPs from all parties – to a clause designed to prevent the UK reverting to World Trade Organisation rules if a deal is not agreed. 

But with Labour planning to approve the triggering of Article 50, can the SNP cause havoc with the government’s plans, or will it simply be a chorus of disapproval in the rest of Parliament’s ear?

The SNP can expect some support. Individual SNP MPs have already successfully worked with Labour MPs on issues such as benefit cuts. Pro-Remain Labour backbenchers opposed to Article 50 will not rule out “holding hands with the devil to cross the bridge”, as one insider put it. The sole Green MP, Caroline Lucas, will consider backing SNP amendments she agrees with as well as tabling her own. 

But meanwhile, other opposition parties are seeking their own amendments. Jeremy Corbyn said Labour will seek amendments to stop the Conservatives turning the UK “into a bargain basement tax haven” and is demanding tariff-free access to the EU. 

Separately, the Liberal Democrats are seeking three main amendments – single market membership, rights for EU nationals and a referendum on the deal, which is a “red line”.

Meanwhile, pro-Remain Tory backbenchers are watching their leadership closely to decide how far to stray from the party line. 

But if the Article 50 ruling has woken Parliament up, the initial reaction has been chaotic rather than collaborative. Despite the Lib Dems’ position as the most UK-wide anti-Brexit voice, neither the SNP nor Labour managed to co-ordinate with them. 

Indeed, the Lib Dems look set to vote against Labour’s tariff-free amendment on the grounds it is not good enough, while expecting Labour to vote against their demand of membership of the single market. 

The question for all opposition parties is whether they can find enough amendments to agree on to force the government onto the defensive. Otherwise, this defeat for the government is hardly a defeat at all. 


Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.