Balkinization: <i>Hobby Lobby</i> Part XII -- On Abortion and "Abortifacients"

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]