I read with interest Prof. Marci Hamilton’s article, “New Rights and Odd Claims in the Hobby Lobby Oral Argument” (Vol. XXXV, No. 2). One of the things that Professor Hamilton noted was that the plaintiffs’ lawyer was unable to articulate a limiting principle for his clients’ claims. As Professor Hamilton points out, their argument would guarantee “a constant stream of cases” seeking exemptions.

I very much fear that Professor Hamilton was prescient on this point. With the Hobby Lobby decision now on the record books, we can see that the necessary limiting principle is entirely lacking. The majority’s opinion goes to great lengths to assure readers that it is only a narrow holding applying to the four contraceptive methods challenged. But the very next day, the Supreme Court issued several orders to lower courts requiring them to rehear cases in which they had ruled against plaintiffs who objected to providing insurance coverage for all forms of birth control, as well as sterilization services in some cases. That’s a significant hint that the Supreme Court’s opinion is meant to be read broadly enough to cover all religious objections to reproductive healthcare in general, at the very least.

That would be bad enough, but I doubt that’s where it will end. There is no principled reason in the majority’s opinion to differentiate between reproductive healthcare and other healthcare services to which religious believers might object, like blood transfusions, vaccines or psychiatric medication. Not to mention noninsurance contexts like antidiscrimination laws. We should certainly not assume that any religious objection requires accommodation under this opinion, but we must also be wary of what will emerge from the Pandora’s box the majority has opened.

KARA LOEWENTHEIL
Director, Public Rights
Private Conscience Project, the Center on Gender & Sexuality Law

Research Fellow, Columbia Law School
New York, NY