The Supreme Court’s recent decision in the Hobby Lobby case caused a great deal of chagrin for those concerned with reproductive freedom. A careful reading of the majority opinion and developments thereafter show that the concern is more than justified as Hobby Lobby has put the Court on a slippery slope that will undoubtedly lead the country backward. Although extremists take issue with Justice Ginsberg’s dissent, that dissent did not overstate the depth of the majority opinion.

A corporation is clearly an entity that is distinct from its directors and shareholders. It is an artificial entity and one that confers many benefits, such as limited liability. That is one of the first rules that is learned in an elementary business law class. Given the benefits and the common understanding of a corporation, the concept that a for profit corporation, not engaged in a religious oriented business, such as a kosher butcher or Christian bookstore, can assert religious objections is quite foreign. The analysis that reached that conclusion is reminiscent of the long discredited “liberty of contract” doctrine, which as invoked to strike down hour and wage laws.

I am sorry to say that, based on an order issued by the Supreme Court, shortly after Hobby Lobby, I believe that Hobby Lobby is the vehicle that will be used to bring liberty of contract back. In Wheaton College v. Burwell, decided days after Hobby Lobby, the Court granted an application to enjoin the enforcement of a rule requiring the College to file a form that would exempt it from providing coverage for contraception.

The College advanced the theory that its filling out of the form would make it complicit in the providing contraceptives by triggering the obligation for someone else to pay for the services to which it objects. This is the rough equivalent of a conscientious objector refusing to pay taxes because he believes that the moneys will be used to fund the military. It is, as Justice Sotomayor observed in her dissent, utter nonsense.

What is even more striking is that two different sets of rules are applied when it comes to women’s issues. When the Court was presented with the question whether the Texas anti-abortion law, which had been struck down by a district court, should remain in effect pending appeal by virtue of a stay granted by the Court of Appeals, Justices Scalia, Thomas and Alito, voting to decline to vacate the stay protested that the Court “may not vacate a stay entered by a court of appeals unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’”

Yet, when a district court and a Court of Appeals denies an injunction which would impact women’s rights, these same three justices have no problem ignoring their own precedent.

Return of “liberty of contract”? I am sad to say probably so.


By Sybil Shainwald

A fierce advocate for women; a tireless champion of women's health outcomes; a legal legacy fighting for reproductive freedom.