We’ve been had. And so has Justice Anthony Kennedy.
The Supreme Court ruled recently in Burwell v. Hobby Lobby that corporations are “persons” under the Religious Freedom Restoration Act. Now Hobby Lobby and other corporations can conscientiously object to Obamacare’s requirement to provide health insurance that includes contraceptives.
Justice Samuel Alito’s opinion for the Court brimmed with reassurances of its modesty. The ruling would not prevent women from receiving contraceptive care. Waivers would be limited to corporations owned by families. The decision would not undermine other regulatory protections.
Meanwhile, Justice Ruth Bader Ginsburg’s 35-page dissent called the Court’s opinion one of “startling breadth.”
These opinions hint at a behind-the-scenes fight over Kennedy, often the swing vote on social issues. At oral argument, Kennedy expressed concern both for religious businesspeople forced to act against their consciences and for employees who would lose health insurance. For Alito to win Kennedy, he had to claim modesty; Ginsburg had to convince Kennedy that a Hobby Lobby victory would risk a cascade of corporate claims.
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