Thanks very much, Tom and Jim, for teeing up these issues. A few points about the abortion angle, most of which I discussed in further detail back in December ( http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html :
1. Preventing implantation is not considered an abortion under the law, and in the mainstream medical and scientific communities. 2. I emphatically *agree*, however (as I explained in my December post), that that does not matter for purposes of the RFRA claims in these cases since, whatever nomenclature one might use, a small number of persons and religions (including the plaintiffs here) think that preventing implantation ends a life, that *deliberately* doing so is immoral, and that some level or type of complicity with such immoral conduct is itself immoral. 3. None of the 18 FDA-approved methods is designed to prevent implantation, and it's unclear that any of them actually does so. Moreover, those that do (if any) may do so only very rarely. 4. It is true that, according to the FDA, the four methods named in the HL complaint -- two IUDs, ella and Plan B -- *may* prevent implantation in a small number of cases. But . . . 5. So, too, might several other of the 18 methods, including, most significantly, the birth-control pill. Thus, even on the plaintiffs' own theories, the HL and CW cases are not limited to four methods -- the exemption would be of unknown breadth. 6. In the vast majority of cases in which their employees would be reimbursed for the purchase of contraception if the Court denies the HL and CW RFRA claims -- perhaps *all *of the cases (we just don't know) -- there would not be any prevention of implantation, and thus no ending of life on anyone's view, and thus no complicity issue. 7. Assuming there are a small number of cases that result in implantation, that will virtually never be the *object *of the employees' use of the birth control, which obviously would be at least relevant to the moral calculus for many, even if not all, persons who think that implantation ends a life. 8. Thus, even on the Greens' view of implantation and life, *and *their idiosyncratic view of complicity, excluding four or more FDA-approved methods from their plans will deny women their right to cost-free access in a huge number of cases (perhaps all of them) where there would not be any sin, let alone complicity . . . and would, at most, prevent the alleged complicity in a tiny handful of (unidentifiable) cases. I am *not *here making any argument about how that fact should bear on the substantial burden analysis -- a complicated question that neither I or anyone else (to my knowledge) has yet written on. But I do think that comparison, that ratio, fairly identifies the problem that the cases present. 9. The Court is, in any event, unlikely to issue a ruling limited to "possible implantation-prevention methods." The scope of such a ruling would be unclear, for one thing, since (as mentioned above) we don't even know what subset of the FDA methods would be covered. More importantly, such a ruling would do nothing to decide the vast majority of the cases that have been filed, which deal with contraception as such, and are not focused on possible implantation-prevention. I doubt the Justices are inclined to issue such a narrow and ineffective ruling. 10. *On the other hand*, and as long as we're on the subject of preventing abortions, one of the principal benefits of the HHS Rule -- as the Guttmacher brief explains (see pp. 23-25) -- is that it will dramatically decrease the incidence of what *everyone *agrees are abortions (the result in 40% of unintended pregnancies). And in a substantially greater number of cases than that, the Rule will spare women being confronted with the decision whether or not to have abortion -- a choice that can be agonizing 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 genuinely concerned about reducing the number of abortions, and about accommodating religious and other moral concerns about abortion more generally, affording RFRA exemptions in these cases is hardly the most attractive option. On Thu, Mar 13, 2014 at 6:20 PM, Berg, Thomas C. <tcb...@stthomas.edu>wrote: > Apropos of two threads: (1) whether this case involves abortion and (2) > whether a limited ruling for Hobby Lobby is possible: > > > > The brief of the Democrats for Life of America and Bart Stupak, on which I > was counsel, is one of the briefs that summarizes evidence on the different > drugs and devices. See > http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-354-13-356_amcu_dfla.authcheckdam.pdf, > at 18-25. I think the evidence is quite plausible that Ella and IUDs could > work to prevent implantation, for the reasons Doug says. There was debate > on this in the FDA advisory committee, and at least one member of the > committee made exactly the same point as below, saying, ""I'll even > concede that the primary mechanism of action [for Ella] might be delayed > ovulation, but not in this group that's five days out from unprotected > intercourse. . . . I can't imagine how we can put all of these numbers > together to say that delayed ovulation explains this continued efficacy [at > five days after intercourse]." See id. at 22 & n.5. Evidence on Plan B > may be growing that it's unlikely to stop implantation (although the FDA > and the government's briefs still say it has that possibility). But at > least as to Ella and IUDs, the objection is quite plausible. > > > > As many know, Congressman Stupak, along with other pro-life Democrats, > supported the Affordable Care Act and provided key votes; several of those > people were then turned out of office because of concentrated campaigns > against them by the main pro-life groups. Neither Stupak nor the Democrats > for Life has it in for the ACA in general. (FWIW, I've also written in > support of the Affordable Care Act, defending many of its other provisions > against criticisms from the main pro-life groups.) > > > > The brief focuses on the issue of abortion and argues that we have a > distinctively strong tradition of protecting conscience on that > matter--recognizing (as we do in other circumstances) the particular burden > from being involved in what the objector regards as the immoral taking of > life--and that this tradition should inform interpretation of RFRA. As to > abortion, more than any other procedure or drug, conscience clauses protect > objectors in the commercial sphere and protect them from indirect > facilitation. The brief argues that under RFRA, this tradition should > extend to objectors to drugs and devices that may plausibly act to prevent > implantation. I'm aware of Marty's argument that in some places, federal > law may define abortion as occurring only after implantation (it does > define pregnancy that way). The brief argues that such a definition should > not set the outer limits of abortion-related accommodation under RFRA. > > > > Beyond the question of whether this case itself involves abortion in a > legally controlling sense ... most of the arguments the government makes here > (that businesses have no free ex rights, that there's no burden on the > employer) would eliminate any challenges to a law that said second-term > abortions must be covered in all insurance policies and that penalized > employers for excluding it or dropping health insurance. And as the > Washington bill I mentioned the other day shows (the bill that passed the > state House), it's quite possible that such laws will be enacted in the > coming years with no exemptions for objecting employers. > > > > Following up on Jim Oleske's question, I agree that in the abortion > context, it is better to protect conscientious objections generally. If > the government refuses to do so, I think it is better to protect religious > objectors, and define religion as broadly as possible, than to protect no > one. > > > .
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