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Saturday, March 22, 2014
Hobby Lobby Part XII -- On Abortion and "Abortifacients"
Marty Lederman
In my
most recent post, I explained that a broad ruling in favor of Hobby Lobby
and Conestoga Wood could mark a sea-change in the way the Court has traditionally resolved claims for religious exemptions in the commercial
sector, with potentially dramatic effects on an array of laws involving taxes,
wages and hours, antidiscrimination norms, etc.
In an ensuing
discussion on an academic listserv, some participants wondered whether the
Court might be able to avoid such broad ramifications by cabining its decision
in some way--in particular, by expressly limiting its holding to cases
involving religious objections related to what the plaintiffs consider to be abortion. That is, in effect, the theme of the amicus brief filed on behalf
of Hobby Lobby by Democrats
for Life and Bart Stupak. See also Part II-B of the amicus
brief for the Christian Legal Society, et al.
Democrats for Life's principal argument is that the burden on religious exercise is especially acute in these particular cases—and the
government’s claim of a compelling interest in denying an exemption is less
convincing—because of a collective national judgment, reflect in many state and
federal statutes, that no one should be required to participate in abortions
against their will.
I’ll address
three abortion-related points in this post. First, I’ll explain why the plaintiffs consider this case to
be about the use of “abortifacients,” and why their RFRA claims are very
different from the tradition of conscience-based statutes that the Democrats
for Life invoke. Second, I’ll
reiterate some practical reasons why the Court is unlike to issue a decision
limited to claims of complicity with “abortion.” And finally, I’ll emphasize the way in which the decision in
Hobby Lobby may, indeed, have a
significant impact on abortion.
1. Is the Case About
Insurance Coverage of “Abortifacients”?
The heart of the
plaintiffs’ claims in these two cases is that the HHS Rule will require the
owners of the three companies in question to be complicit in the
use of what they refer to as “abortion-causing drugs and devices,” or
“abortifacients.” At least
on first glance, this is a counterintuitive claim, since under the law itself
insurance plans must include coverage for 18 of the 20 FDA-approved
contraceptive services yet the Act itself specifically
allows plans to exclude abortion services. 42 U.S.C. § 18023(b)(1).
If the
plaintiffs were correct that some of the FDA-approved items are abortifacients,
wouldn’t HHS be violating the law by requiring their coverage in all plans?
a. For reasons I discussed in greater
detail in a post
back in December, the answer is no:
There is no inconsistency, and the HHS Rule is fully compliant with the
statutory exclusion for abortion services.
The source of
the apparent disconnect here is a familiar one—namely, that there is a
fundamental difference of opinion on the “most sensitive and difficult
question” of “when life begins,” a question on
which “those trained in the respective disciplines of medicine, philosophy, and
theology are unable to arrive at any consensus.” Roe v. Wade, 410
U.S. at 159-60. As Arthur Leff
once wrote, this question can be answered “not on any deceptively 'natural'
biological definition of life,” but instead only as a result of “social and
legal decisions.” “In 'nature,'”
Leff explained, “things are; only
people classify.” Therefore “the
relevant legal question ought not to be whether a foetus is 'alive' or 'a
person' from the moment of conception, or the moment of viability, etc., as if
the question were one of natural rather than social decision. A legal decision will still have to be
made to whom the law ought to give protection and at what cost, paid by who[m]
. . . ." 94 Yale L.J. 1855,
1997 (1985). See also The Human Life Bill: Hearings Before the
Subcommittee on Separation of Powers of the Senate Committee on the Judiciary,
97th Cong., 1st Sess. 74 (1981) (view of the National Academy of Sciences) (whether “actual human life
exists from conception” is “a question to which science can provide no answer,”
and thus “must remain a matter of moral or religious value").
U.S. law has adopted
the standard, consensus understanding in the scientific and medical communities
that pregnancies begin—and thus that “abortions” of pregnancies can occur
only after—a fertilized egg is implanted in the uterine wall.
The individual
plaintiffs in these cases, by contrast, believe that human life begins when an egg and sperm unite, even before the embryo is implanted in the
uterine wall, and that it is therefore a termination of human life to prevent the embryo’s implantation.
b. None of the
18 FDA-approved methods of contraception destroys an embryo already implanted
in the uterine wall. Therefore, as
a matter of federal law (and standard scientific and medical understandings),
those methods do not terminate a pregnancy or result in an “abortion.”
c. What is more, none of those 18 methods is
designed to prevent implantation, either—and it's unclear that any of them
actually does so.
So even under plaintiffs’ view of what constitutes "abortion," why might those
methods raise any moral concerns?
Because,
according to the FDA, the four contraceptive methods named in the Hobby Lobby complaint -- two IUDs,
ella and Plan B -- might prevent
implantation of an embryo in a small number of cases. And if and when they have such an effect, then in
plaintiffs’ view—even if not in the
view of the law—such cases would result in termination of a human life. Moreover, in plaintiffs’ view, deliberately preventing implantation is
immoral, and some level or type of complicity with such immoral conduct is
itself immoral. Plaintiffs claim
that the HHS Rule requires them to participate in such implantation-prevention
in a way that would make them complicit in sin. If that were the
case, then (as I explained in my December post) I agree with plaintiffs that it
would not matter for purposes of RFRA whether
the law concurs with their view that prevention of implantation is an
“abortion.” The threshold
question, for RFRA purposes, is not whether a particular effect on an embryo is
or is not an “abortion” as the law defines it, but whether, regardless of
nomenclature, it involves something the plaintiffs sincerely believe to be
sinful. As the Democrats for Life
put it, “[i]t is no salve to plaintiffs’ conscience to be told that the
government defines abortion differently.”
(On the other hand, I have argued
that plaintiffs’ allegations of complicity do not satisfy the pleading
standards RFRA requires, because those assertions are pitched at such a high
and abstract level of generality, without any effort to explain, or even to
articulate, why the plaintiffs' religion would make them morally culpable in such a case
if they were to comply with federal law. That’s a separate point for a different discussion, however.)
e. Even so, if
the Court were to deny the claims for RFRA exemptions, then in the vast
majority of cases in which the Hobby Lobby and Conestoga Wood employees would
be reimbursed for the purchase of contraception—perhaps in all such cases (we just don't know) -- there would not be any
prevention of implantation, no ending of life on anyone's view . . . and thus
no issue of complicity.
I do not mean to
suggest that this completely settles the question of whether there is a
substantial burden on the Greens’ and Hahns’ exercise of religion. Certain individuals, apparently
including these plaintiffs, believe that prevention of implantation is itself a
grave moral sin, and therefore perhaps they could argue that even if it occurs rarely--even if only once to a single employee--they will have engaged in cooperation with
evil.
It is, however,
important to understand what it is plaintiffs are requesting from the Court—namely, an
exemption that would deny their female employees their right to cost-free
access to the array of FDA-approved methods, thereby increasing those employees' risk of
unintended pregnancies, in a huge number of cases (perhaps all of them) where
there would not be any sin, let alone complicity . . . in order to prevent even
the slightest risk that the company
directors would be complicit in what they view as wrongful conduct in some very small
percentage of (unidentifiable) cases.
f. This demonstrates, I think, the
problems with the Democrats for Life’s reliance on other statutes that have traditionally protected
conscientious objections to abortion. DfL argue that what they call the nation’s longstanding
“tradition of exempting objections to abortion” not only demonstrates why the
Court should offer special solicitude to the plaintiffs’ concerns here, but
also “undercuts the government’s claim that it has a compelling interest in
requiring coverage of possible abortifacients.”
I see at least
three difficulties with this line of argument.
First, the statutes on which DfL relies are very different from
RFRA. The question under RFRA is
whether to confer a religious exemption from a legal obligation that is
generally applicable in the absence of such a religious exemption. Here, for instance, all health
insurance plans (whether employer-sponsored or not) must cover preventive
services, and the issue is whether the Hobby Lobby, Mardel, and Conestoga Wood
plans should be exempt from that otherwise universal obligation. As I have explained elsewhere,
in cases like this, where the government has decided that commercial actors generally have an obligation that applies across-the-board,
i.e., where the obligation in question is made an ordinary incident of
commercial activity, both courts and legislatures have consistently refused to
confer religious exemptions to those commercial actors with religious objections.
In the statutes
that Democrats for Life cite, by contrast, the legislature has in effect
determined that no one should have such a
duty in the first instance to provide abortions. One
such law emphasized in the DfL brief, for example, provides that “[t]he
Federal Government, and any State or local government that receives Federal
financial assistance, may not subject any health care entity to discrimination
on the basis that . . . the entity refuses to undergo
training in the performance of induced abortions, to require or provide such
training, to perform such abortions, or to provide referrals for such training
or such abortions.” That is
why those statutes are not drafted in terms of religious exemptions—they
provide that no one is
required to perform abortions, or at a minimum that no one can be required to
provide abortions in violation of her religious or other moral reasons.
There’s no need for a specifically religious exemption, because there's no generally applicable rule requiring
people generally to perform (or subsidize) abortions.
In
order to be analogous to these statutes, the ACA itself, even apart from RFRA, would
have to read something like this: "No health insurance plan shall be
required to include cost-free reimbursement for preventive women's health
services." But, in fact, the
law provides exactly the opposite: that all health insurance plans must provide such coverage. That's
why a religious exemption is being sought here -- because the generally
applicable baseline rule is that an insurance plan in America covers these
minimum services. There is no analogous federal law that all medical
facilities must perform abortions -- to the contrary.
Second, the “strong tradition” to which DfL refers consists of
statutes that involve “abortion” as that term is defined in the law—not any and all conduct that particular
individuals might deem to be an abortion.
That is to say, those laws do not
generally cover drugs or devices that prevent implantation. Therefore, the plaintiffs here are
asking for an exemption for conduct quite different from what those statutes have
traditionally addressed.
Third, those other statutes provide that no one shall be required
actually to engage in abortions or in other conduct designed to result in
abortions. As far as I know, they
do not set up a prophylactic rule that addresses conduct that does not result in abortion in the
mine run of cases but that merely presents a possible risk of abortions in a
small percentage of cases.
2.
Is the Court Likely to Issue an “Abortifacient”-Specific Holding?
As I explained
in my December post, I think the Court is unlikely to issue a ruling limited to
"abortifacients" or "possible implantation-prevention methods." For one thing, the
scope of such a ruling would be uncertain. Hobby Lobby and Conestoga Wood have identified four forms of
contraceptive services that might
prevent implantation. But so, too,
might several other of the 18 FDA-approved
methods, including, most significantly, some forms of the birth-control pill. (The FDA-approved
labeling for Seasonale, a birth-control pill, reads: “Although the
primary mechanism of this action is inhibition of ovulation, other alterations
include changes in the cervical mucus (which increase the difficulty of
sperm entry into the uterus) and changes in the endometrium (which reduce the
likelihood of implantation.” See also, for example, this
website, taking the view that ten or more of the methods involve “embryocide.”) Thus,
even on the plaintiffs' own theories, the remedy they are seeking would be of
unknown breadth, not necessarily limited to the four identified forms of
contraception.
More
importantly, such a ruling would do nothing to decide the vast majority of the
challenges that have been brought against the HHS Rule. Most of those cases (including those
brought by Catholic employers) seek an injunction against coverage of contraceptive services
writ large, and are not limited to possible
implantation-prevention. I doubt the Justices will be inclined to issue a
narrow ruling that would leave in place the bulk of the cases that have created
the current circuit split.
3.
What Ruling Would Actually Reduce Abortions?
That is not to
say that abortion is, or should be, immaterial to the decision of the
case. To the contrary. One of the most compelling of the
governmental interests in the case -- as the Guttmacher
Institute amicus brief explains (see pp. 23-25); see also 78 Fed. Reg. at
39,872 & note 14 -- is that compliance with the HHS Rule will significantly
decrease the incidence of unintended pregnancies, which will in turn mean a
decrease in what everyone agrees are (post-implantation)
abortions, since approximately 40% of unintended pregnancies result in
abortions.
Moreover, the HHS will spare many women the decision whether or not to terminate
a pregnancy -- a difficult and often agonizing choice for many employees with
strong religious or other moral views about abortion. As Walter Dellinger
wrote in the Guttmacher brief:
In
these cases, the shifting of a burden to third parties would involve even more
than economics and personal health, as significant as they are. Denying coverage of the most effective
methods (or, in some cases, all methods) of contraception leads predictably and
directly to unintended pregnancies. Removing the contraceptive coverage guarantee would place
some women with religious objections to abortion in what is for them a morally
difficult position: they might desire but be unable to afford the most reliable
methods of contraception and therefore be at increased risk for confronting an
unintended pregnancy and the difficult decisions that ensue. For all women, denying practical access
to the method of contraception that is right for their health and life
circumstances and the well-being of their families can represent a most serious
incursion into their individual moral autonomy and the course of their lives.
It seems to me,
therefore, that for Justices and others who are concerned about reducing the
incidence of abortion, and about accommodating religious and other moral
concerns about abortion more generally, affording RFRA exemptions in these
cases would hardly be the optimal option.
Compendium of posts on Hobby Lobby and related cases Posted 8:16 AM by Marty Lederman [link]
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