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Laura Perrins: The US Supreme Court has not banned contraception. It has just interpreted the law


I accept that many British readers may think I have an unhealthy interest in US Constitutional Law. They would be right. So for the third day in a row I am going to talk about the Hobby Lobby case. Thank you to the two readers who will continue to read this piece.

The reaction to this case in the leftie Twittersphere has been hysterical and misinformed.

Many liberal commentators seem to believe the following nonsense: 1) The United States Supreme Court (SCOTUS) is the X-Factor panel and Justice Samuel Alito is Simon Cowell. 2) SCOTUS three days ago “banned contraception” 3) SCOTUS sets policy 4) SCOTUS is not a legal body.

Let’s set out some basics. The United States Supreme Court does not “decide” which lawyer put on the best performance and send them through to the next round, or declare them winners. They are there to adjudicate legal disputes, usually around legislative interpretation of the articles of the Constitution and the US Bill of Rights.

How they interpret this can frequently stray into the realm of the political – originalists are seen as right-wing, those who see an ‘ever evolving constitution’ are seen as left-wing. But still, SCOTUS is not there to just ‘make stuff up”, although in the past it could be said they have done this.

SCOTUS can be wrong, of course, as a matter of law. But that is very different to being wrong, according to the Twitter mob.

In the Hobby Lobby decision many liberal commentators have implied that contraception has been banned in the US – yes banned – women are now wandering around Pill-less.

What the decision did say is that in narrow circumstances the government cannot “substantially” burden employers’ ability to practice their religion by mandating them to cover certain types of contraception as the government has an alternative way to accomplish its goal of providing contraceptive access.

The Supreme Court was interpreting the provisions of Religious Freedom Restoration Act 1993, which was signed into law by that right-wing extremist President Clinton. But it seems that many liberal commentators know better.

Not all mind you, as liberal Harvard Law professor Lawrence Tribe told MSNBC to stop the ‘cardboard cut-out caricatures’ regarding Supreme Court decisions and there was this informed piece in the Atlantic, pointing out that, The Supreme Court Isn’t Waging a War on Women in Hobby Lobby.

The protection accorded to religious belief in the United States runs deep, is part of the reason the country was established in the first place, and is given protection in the First Amendment. It states, in full:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Any interference with an individual’s religious belief including forcing them to pay for another’s contraception against their conscience must meet a pressing government need in the least burdensome way possible.

The Court found that as contraception could be provided by the government through a universal scheme (that will be paid for by the taxpayer) it was unlawful to impose this burden upon the employer. Unlawful – not just that they didn’t really fancy it.

I suspect many liberals do not like this decision because it gives protection to religious beliefs, and many have made their distain for religious beliefs and the exercise thereof very clear. But that I guess this is why the founders knew they had to protect religious practice explicitly, in the First Amendment. Mobs are not good with protecting religion and Europe has a rotten track record in this area.

Some liberals may be content with the private practice of religion or “silliness” as they see it, but once it pops its head out of the home or places of worship they would quite like to shove it back in again.

These people would have no problem forcing doctors to perform abortions against their religion, on conscripting men and sending them to war against their religion, or forcing employers to pay for another’s morning after pill against their religion. This makes a mockery of the word ‘liberal.’

Now, if anyone wants to argue why the Supreme Court was wrong in its interpretation of the Religious Freedom Restoration Act as a matter of law please do get in touch through the website. Legally wrong that is and not just that you don’t really fancy the singing. Otherwise calm the heck down.

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