Tag Archives: supreme court

Tom Stringham: What would the Hobby Lobby case look like in Canada?

If you are a Canadian who has not closely followed Burwell v. Hobby Lobby, you might be surprised to find out what everyone is so upset about.

The US Supreme Court ruled today in favor of the retail chain Hobby Lobby in one of its highest-profile cases this year. While the family which owns the chain has complied with a new mandate that requires them to provide employees with insurance coverage for contraceptives, they have objected on religious grounds to paying for abortifacients (drugs that prevent or disrupt embryonic implantation).

Their objections stood in court, as a decision written by Justice Samuel Alito contended that the US government had failed to show that the mandate was the “least restrictive means” of enforcing the state’s interest in providing access to birth control.

There is a legitimate debate to be had whether the US could provide access to popular birth control methods in less restrictive ways, although it appears the court ruled correctly (Justice Kennedy, concurring, suggested the government could just directly fund these drugs). But the media has avoided that discussion for the most part, instead framing the case as part of some larger conflict of religious freedom and women’s health. Some progressive groups see the decision as an assault on women.

The extreme politicization of a relatively narrow issue is unfortunate, but even more regrettable is that not a single voice in the American media appears to have looked outside the US for broader context.

In Canada, contraceptives and abortion-inducing drugs are not generally covered by the public health system. These drugs can be purchased, like most drugs, at the patient’s expense. Some private insurance plans cover birth control, but this is not a requirement. It goes without saying that employers are not required to pay for abortifacients as part of their benefits packages to employees. It’s a quirk of the American health care system that a woman’s employer is the first party responsible for her birth control choices.

One protester’s sign at the Supreme Court today read “Keep bosses out of bedrooms!”—the implication being that employers should not be allowed to withhold abortifacient coverage. But the slogan could be used in defense of a much different message. Employers would be happy to stay out of bedrooms and, in all likelihood, would rather not be forced into the situation of making sensitive health care decisions at all. If they lived in Canada, they wouldn’t be.

The Hustings


Geoffrey Wale: Supreme Court shouldn’t have heard Whatcott case

I am neither a lawyer nor a legal scholar, but this does not preclude me from commenting on matters of law and, on occasion, passing judgement on decisions handed down by the courts. One such decision is that of the Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott [2013]. In this case I think the Justices, should never have heard the case.

The matter before them concerned Bill Whatcott, a man I have previously made a point of not discussing, as I think he has had more public attention than he merits. What can I say about Bill Whatcott other than he is a crank? He is best known for his scurrilous public protests against homosexuality and for distributing flyers with graphic imagery and defamatory passages such as “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools.” In addition, the flyers describe homosexuals as “dirty”, “filthy”, “degenerate”, and paedophilic.

In 2005, the Saskatchewan Human Rights Tribunal, upon receiving complaints about Whatcott’s flyers, deemed his material was promoting hatred against homosexuals because of their sexual orientation and contravened s.14(1)(b) of The Saskatchewan Human Rights Code. He was fined $17,500. The judgement against Whatcott handed down by the Tribunal was appealed and the Saskatchewan Court of Appeal set it aside, ruling that in the context of a debate about policy and morality, the flyers could not be considered a hate publication.

I agree. The contents of Whatcott’s flyers is offensive, but ultimately trivial. Who, if anyone, is listening?

The Supreme Court of Canada disagreed in upholding the judgment of the Saskatchewan Human Rights Tribunal against Whatcott, ruling that the limitation on freedom of expression via the prohibition of hate speech, when properly defined and understood, is demonstrably justified in a free and democratic society. If what was printed in Whatcott’s flyers constitutes hate speech, this is setting the bar on what constitutes hate speech very low. Moreover, gagging someone like Whatcott is not going to stop people from harbouring unkind thoughts about gay people. In all likelihood it merely ramps up their resentment against what they view as the homosexual agenda.

The Hustings