Three Takeaways from the Supreme Court’s Hobby Lobby Decision

By Nancy L. Cohen, July 1, 2014

During the 2012 election, it seemed farcical that the Republican Party would treat birth control as controversial. Yesterday the Supreme Court in Burwell v Hobby Lobby gave its stamp of approval to that symptom of GOP delirium. The court ruled, in effect, that a boss’s prejudice, as long as it’s fancied up in religious rhetoric, trumps women’s equal access to birth control.

Here are the three key things you need to know about Hobby Lobby.

1. Women’s equality remains a battleground in 21st century America.

Of course, men have a stake in women’s access to birth control, but let’s not pussyfoot around. Women took the blow here and the conservative men on the Supreme Court don’t give a damn about women’s rights.


Hobby Lobby protests at Supreme Court

Demonstrators at the Supreme Court calling for the birth control mandate to be upheld in the Hobby Lobby case.

Five conservative male justices ruled in Hobby Lobby against women’s fundamental interest in access to birth control; all three female justices (and the one liberal male justice) dissented.

Alito’s decision in Hobby Lobby was long in empathy for the fundamentalist Green and Hahn families and dismissive of women. Yes, the Supreme Court threw a scrap to women (and rational men), conceding that there is a compelling interest in providing contraception with no cost-sharing in insurance plans. But then it opened the door to all kinds of mischief.

2. Slippery slopes, floodgates, and Pandora’s Box. Name your cliché, it’s true.

Alito and Justice Anthony Kennedy (in a concurring opinion) insist the Hobby Lobby decision is narrow.  But the gentlemen do protest too much. As Jeffrey Toobin writes in the New Yorker, this is right out of the radical playbook of the Roberts court. Start by chipping away at a right, say voting rights, in an allegedly narrow decision. Next, use that narrow decision as “precedent” for eviscerating or overturning settled law. That’s how the conservative majority on the Supreme Court ended limits on corporate campaign donations in Citizen’s United; it’s how they gutted the Voting Rights Act.

The Supreme Court “has ventured into a minefield,” the irreplaceable Justice Ruth Bader Ginsburg observes in her brilliant Hobby Lobby dissent, correctly noting that nothing in Alito’s logic prevents all kinds of claims that would be disastrous for women–and for that matter, all working people. Now that corporations are persons that can practice religion, what’s to stop any public corporation from seeking an exemption from the ACA’s birth control mandate? Or any boss from claiming that some law he doesn’t like —paying the minimum wage, employing LGBT persons, paying insurance costs for a single pregnant employee—violates his religious beliefs.  As Toobin warns, recent history suggests the Supreme Court conservatives are gunning for the contraception mandate and a whole slew of employment laws.

3. A political decision with a political backstory.

The political and historical background, conveniently, was on display outside the Supreme Court building. Right-wing women, hailing from groups that have worked tirelessly for decades to put women back in their God-given place, held up click-bait worthy placards saying “Pro-life is Pro-women.”

Hobby Lobby protests 3

Women from Concerned Women for America and Americans United for Life celebrate Hobby Lobby decision.

For the record, these cheery demonstrators are members of the right-wing groups that killed George W. Bush’s nomination of a woman to the Supreme Court (Harriet Miers). Why? Because her legal record showed that she believed in the right to privacy—the legal foundation of the constitutional right to birth control and abortion and the decriminalization of homosexuality. Alito passed their orthodoxy test and in a very real sense owes his job to them.

What you can do: your 3-step action plan

Politics created the Supreme Court’s conservative majority; politics can turn it into a minority over the long term.

Hobby Lobby protests 2

But of course!

As Michael Tomasky points out in a great piece, conservatives have been laser-focused on elections to stack the Supreme Court with orthodox conservatives. Democrats need to focus their own minds on the importance of the Supreme Court. It’s easily conceivable, he convincingly argues,  that eight years of a Hillary Clinton presidency would result in a liberal lock on the federal courts for the conceivable future.

As I wrote in Delirium, the right-wing sexual fundamentalists have been experts at electoral politics for decades, and that’s the reason a tiny minority holds such sway over the Republican Party and, through the party, over our nation’s government.

Democrats have learned their lesson, however, and are actively campaigning on a pro-women’s equality platform. The 2014 and 2016 elections hold a lot of promise, not just for stopping the erosion of women’s rights, but also for advancing on many fronts—especially on related issues of LGBT rights.

All you have to do is vote, talk to your friends and family about the stakes and the importance of voting, and volunteer your time or money to candidates who make advancing gender equality a real priority. Easy as 1-2-3.

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Nancy L. Cohen