The Supreme Court Isn't Waging a War on Women in Hobby Lobby

Why are religious liberty and contraceptive rights being framed as opposites in a much-anticipated Supreme Court ruling on the Affordable Care Act?
Alexander Demianchuk/Reuters

Responses to the Supreme Court's ruling in Burwell v. Hobby Lobby are a study in contradictions.  It's "a landmark victory for religious liberty" that gives bosses "license to harm their female employees in the name of religion." A "struggle for the First Amendment has been vindicated," while the law is being "used as a sword to thwart anti-discrimination laws." All the rhetoric sets up the same dichotomy: religious liberty vs. women's reproductive rights. How did two kinds of freedom come to be seen as mutually exclusive?

Here are the basics of the case (insofar as it's possible to call anything about a Supreme Court decision "basic"). In 2012, Hobby Lobby, a crafts company owned and operated by a religious couple named David and Barbara Green, contested the so-called "contraception mandate" in the Affordable Care Act. This part of the law initially required organizations of a certain size to cover FDA-approved contraceptives in their insurance plans. The Greens, along with a Mennonite family that owns a company called Conestoga Wood, said that four of the listed contraceptives violated their religious beliefs because they might possibly prevent a fertilized egg from implanting in a woman's uterus. Even if they weren't taking the drugs themselves, they said, they felt morally culpable for paying for their employees to take them.

The question was whether this was a legitimate claim under the 1993 Religious Freedom Restoration Act: Did the mandate "substantially" burden these companies' ability to practice their religion, and did the government have an alternative way to accomplish its goal of providing contraceptive access? For that matter, could companies even have religious-freedom rights?

The Court said "yes" to all three of those questions, but in doing so, it has created a lot of ire.

To some extent, this is like any other issue that gets split into two false sides: All the links above are statements from groups with a vested interest in making their particular viewpoints seem like facts. That's to be expected: It's the job of PR people to spin issues to their advantage. 

But in this case, PR mirrors real life—or at least the rhetoric of the Supreme Court. The decision in the case clocks in at 49 pages authored by Justice Samuel Alito, followed by a 35-page dissent from Justice Ruth Bader Ginsburg (plus four pages of concurring commentary by Justices Anthony Kennedy, Stephen Breyer, and Elena Kagan). Throughout, Alito and Ginsburg write about the complaint in entirely different terms: Where he sees religious liberty, she sees a violation of women's rights.

This is clearest in the statements each justice chose to open with. Toward the end of his summary of the Court's decision, Alito puts on his well-worn moral philosopher's hat, questioning how deeply the justices can get involved in theological questions. "The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy," he writes. "Namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another." This is a reference to one of the main questions in the case: whether having to pay for contraceptives actually counts as a substantial burden on someone's religious beliefs.

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Emma Green is the assistant managing editor of TheAtlantic.com, where she also writes about religion and culture.

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