There is another aspect to this which it seems to me has gone largely unnoticed. The 2 cases that the Supreme Court has agreed to review are from individuals and businesses who do not object to contraception, but instead object to abortion and believe that some contraceptives are abotrifacients because they may prevent a fertilized egg from being implanted in the uterus. Generally here the objections are to Plan B, Ella and IUDs. So presumably any relief granted to these plaintiffs should only be for coverage of these particular contraceptive methods. Also (though I am no scientist), there appears to be considerable controversy about whether even these contraceptive methods in fact interfere with implantation as opposed to interfering with fertilization. At most, apparently, they only interfere with implantation some times, and may not at all. So this makes any complicity with evil even more attenuated. And should the courts examine the science of all this? Suppose the court finds that Plan B never really interferes with implantation, and that these objectors merely have a wrong view of the science. Is it a burden on free exercise to require cooperation with something that is mistakenly believed to be an abortifacient?
On the other hand, the cases brought by Catholic objectors involve a broader objection-- abortifacients AND contraceptives. Though apparently Catholic objectors are all right with contraceptives that are prescribed for medical conditions, and not for the purpose of contraception. So that would seem to mean that the scope of relief-- and the kinds of insurance policies companies will need to write in response-- will be different in different cases. At any rate, the relief would not seem to be a broad invalidation of coverage for all medications that can be used as contraceptives. And one more thing-- to the extent that objections are only to abortifacients, Plan B is available over-the-counter to women 18 years of age and older. Does the contraceptive coverage mandate apply to over the counter contraceptives when an insurance policy does not apply to other over the counter drugs? Howard Friedman ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Conkle, Daniel O. [con...@indiana.edu] Sent: Wednesday, November 27, 2013 11:25 AM To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: RE: The ability to practice one's religion These are fascinating questions. Indeed, it may be that if the law prevents the exercise of conscience, then – at least with respect to certain claims concerning complicity with evil – there is no violation of conscience after all. Would conscience would demand civil disobedience and, if not, as Eugene suggests, is there nonetheless an injury (to conscience?) that we should recognize as a serious loss? Speaking specifically on the question of Catholic opposition to the contraception mandate, Thomas Joseph White and R.R. Reno wrote on this issue in the November 2012 issue of First Things, in an article that included the following observations (note the “when possible” and “available steps” caveats): “one principle is clear: We should always seek to withdraw support and reduce material cooperation when possible. The failure to do so sends a message. It suggests that our material cooperation flows from assent, all the more so when we do not take the available steps to disentangle ourselves.” Thomas Joseph White and R. R. Reno, A Mandate to Disobey, http://www.firstthings.com/article/2012/09/a-mandate-to-disobey Dan Conkle Maurer School of Law Indiana University Bloomington
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