Over 50 friend-of-the court briefs have been filed in favor of the position of Hobby Lobby and Conestoga Wood, as the Supreme Court considers whether the religious exercise of these companies and their owners is infringed by the contraceptive coverage requirement in the Affordable Care Act. Twenty-two briefs have been filed supporting the government’s position, although numbers certainly should not be taken as an indicator of the strength of either argument or a predictor of the ultimate outcome.
A law or regulation violates the Religious Freedom Restoration Act (RFRA), if it imposes a “substantial burden” on a person’s religious exercise, unless it furthers a compelling government interest, and it is the least restrictive way of furthering that interest. In both Hobby Lobby and Conestoga Wood, the plaintiffs do not object to providing coverage for all contraception, but rather just four types, including the emergency contraceptives ella and Plan B, as well as IUDs, which they insist can act as abortifacients, despite medical evidence to the contrary.
Many of the briefs say much more about the politics of abortion, reproductive rights, and religion than they do the finer points of the law — although many do address questions such as whether a corporation can have a religious conscience protected by the law, and whether the contraception coverage requirement burdens that religious exercise. But many of them address political, scientific (or, more accurately, pseudo-scientific), and theological questions that highlight how the politics of these cases have played out in the court of public opinion, and reflect how many advocacy groups and pundits will react to the ruling, however the Court decides the case.
In other words, however the Court decides Hobby Lobby, these same arguments will continue to play out in the context of free exercise and establishment law cases, in public health policy, as well as in the drafting of legislation aimed at, for example, expanding the ability of business owners to discriminate against LGBT people, using religious freedom as an excuse, or restricting access to reproductive health care. They represent the heart of the religious conservative worldview on religion in public life.
1. The Upside-Down Health Argument.
The Breast Cancer Prevention Institute and other related groups have filed a brief charging that contraceptives are actually detrimental to womens’ health, and that the Institutes of Medicine, the group on whose recommendations the rule is based, gets the science all wrong:
the Government selectively ignored and wholly disregarded a large body of relevant, widely available, scientifically sound, scholarly research. The research surveyed for this Court shows that some of the contraceptive drugs have been classified as carcinogens, and that each of the contraceptive drugs and devices have been shown to significantly increase risks of other serious health conditions, including HIV, stroke and heart attack.
Just as with claims that abortion causes breast cancer, that simply isn’t true. As the Ovarian Cancer National Alliance notes in its brief supporting the government’s position, “the contraceptive-coverage provision takes an important step forward toward increasing access to treatments that reduce the risk of ovarian and other deadly gynecologic cancers, but the position of the companies and shareholders challenging that provision jeopardizes that access for thousands of women nationwide.”
Dr. Nancy Stanwood, board chair of Physicians for Reproductive Health, said that hormonal contraceptives such as the pill, the patch, and the ring, “actually decrease the risk of cancers,” including ovarian, uterine, and colon cancers, and “they do not increase the risk of breast cancer.” The scientific community “is very clear on that, and the medical community is very united in that understanding,” she said. She added that IUDs, one of the devices challenged by Hobby Lobby, decrease the risk of uterine cancer.
Although there has been some suggestion that Depo-Provera might increase the risk of contracting HIV, she said, the World Health Organization did not recommend against Depo-Provera’s use, but rather emphasized the need to combine it with a condom, the only contraceptive method also used for HIV prevention.
As for heart attack and stroke, Stanwood added, that risk is slightly increased using hormonal methods that contain estrogen, but that the “actual risk is very small,” and smaller than the risk when pregnant. It is “important to put them in context of how high is the risk, and the risk compared to what?” said Stanwood. “It just sounds unfortunate that someone decided to write an amicus brief that contains things that were not in context and were somewhat inflammatory and not based on modern science.”
2. What “gender inequality?” The mandate is sexist!
The brief written by the Life Legal Defense Foundation, and joined by the Beverly LaHaye Institute of Concerned Women for America takes issue with the government’s claim that its compelling interest in establishing the contraception coverage requirement is to promote women’s health and gender equity. The biggest headscratcher in their brief is the claim that there is no dichotomy between an intended and unintended pregnancy, and that the government’s goal of preventing unintended pregnancies is therefore somehow misguided. “Some women welcome ‘unintended’ pregnancies, and some ‘intended’ pregnancies end in abortion due to complications or a change in a woman’s social situation,” they write. That’s true, of course, but doesn’t therefore prove that there’s no such thing as an unintended versus intended pregnancy. Ask any woman.
The brief questions whether getting contraceptives for free will actually result in women . . . using contraceptives: “The Government hypothesizes that women are deterred from obtaining contraceptives because of their cost, and that therefore the Mandate will increase utilization of contraceptives.”
As the Guttmacher Institute notes in its brief, though, “access to the range of contraceptive methods without cost sharing can dramatically reduce the rate of unintended pregnancy, with profound consequences for women and society.” Also, lest this get lost in the fog of distorted data, “reducing the rate of unintended pregnancy is by far the most widely accepted and effective means of reducing the need for and incidence of abortion.”
LLDF adds the mandate doesn’t act to decrease gender inequality (a term placed in scare quotes in the brief) but actually increases inequality by putting women at risk for the alleged health risks of contraceptives (see item 1, above).
Religion, LLDF argues, is not the only issue in the case. The mandate, said Dana Cody, LLDF’s president, said in a statement, is “unbelievably irresponsible and sexist.”
3. Strange bedfellows: Democrats for Life
While the religious (and mostly Republican) opposition to the contraception mandate has been marshalled as evidence of a Republican war on women in Democratic talking points, the organization Democrats for Life — once thought to be the key to Democratic gains, now representing a nearly extinct breed in Congress — positions itself on Hobby Lobby’s side. In its brief, on which it is joined by former Rep. Bart Stupak, who drew the ire of pro-choice groups during the debate over the ACA, Democrats for Life specifically takes on Hobby Lobby’s opposition to emergency contraception:
Although the government has made statements that terminating a fertilized embryo before it implants in the uterus is not an abortion, the relevant matter for the claim of conscience under RFRA and the First Amendment’s Free Exercise Clause is plaintiffs’ belief that a distinct human life begins at fertilization. It is no salve to plaintiffs’ conscience to be told that the government defines abortion differently. Furthermore, plaintiffs have a colorable cause for concern that the drugs and devices to which they object may act to terminate embryos. And even applying the government’s definition, there is evidence that the “emergency contraceptive” Ella may terminate embryos after implantation.
Once it has maintained that ella is an abortifacient (which it isn’t), DFL then makes the leap that because the conscience objections of anti-abortion doctors, hospitals, and others are protected under laws granting them the right to refuse service, that Hobby Lobby should also have its objection to “abortifacients” recognized. “This case implicates the tradition of protecting conscientious objections to abortion, in that plaintiffs object to devices and drugs that may act to terminate a newly fertilized embryo,” Democrats for Life argues, and since “these objectors believe that a distinct life begins at conception, it is no salve to their conscience to be told that the government defines abortion differently.”
Although many observers have pointed to courts’ unwillingness to question the authenticity of a RFRA plaintiff’s “sincerely held religious belief,” Mary Briscoe, Chief Judge the Court of Appeals for the Tenth Circuit, took a different view in her dissenting opinion in Hobby Lobby. The connection, she wrote, “is not one of religious belief, but rather of purported scientific fact, i.e., how the challenged contraceptives operate to prevent pregnancy. Consequently, rather than being off limits to examination, plaintiffs’ allegations regarding the abortion-causing potential of the challenged drugs are subject not only to examination but evidentiary proof. In short, they must be proven by plaintiffs on the basis of sufficient evidence.”
4. Be careful what services you ask your plumber to do
A brief signed by the Southeastern Baptist Theological Seminary, the Coalition of African American Pastors, the Manhattan Declaration, Instep International, and 38 pastors and theologians, including Rick Warren, argues:
The Christian doctrine of vocation teaches that all work—whether overtly sacred or ostensibly secular—is spiritual activity, that Christians are called by God to specific occupations and businesses, and that Christians must conduct themselves in their vocations in accordance with their Christian beliefs. A Christian may not simply check his faith at the workplace door. Accordingly, Christian business owners, as a matter of scriptural requirement, are obligated to conduct their business as an expression of their faith and in accordance with the dictates of faith and conscience.
“This case throws into sharp relief the problems that can arise when the Christian doctrine of work is not properly understood,” Hugh Whelchel, the executive director of the Institute for Faith, Work, and Economics, who signed the brief, said in a statement. “We as Christians cannot compartmentalize our faith from the work we do every day, whether we’re a pastor, a plumber, or business leader. The Bible teaches that all of life is integrated and matters to God. This fundamental doctrine needs to be preached more often in our churches as well as understood in our courts.”
Daniel Akin, Southeastern’s president, tellsReligion News Services’ Jonathan Merritt:
“I am convinced this is a critical issue that if Hobby Lobby loses, a door is open for further infringements on religious liberty and freedom of conscience,” Akin said. “That this is even on the table signals a new day, and not a better one, in matters of religious liberty and matters of faith.
Ravi Zacharias, told Merritt, “Sadly, over the years, the Christian faith has been targeted by a rabid secularization and evicted from any or all public expression. The encroachment upon our civil liberties is frightening and we ought to take a stand.”
This argument obviously has wide-ranging implications for church-state separation law.
5. The “sex and marriage marketplace” as a war on women
As Merritt notes, all 38 signers of the theologians’ brief were men. Not to worry! The group Women Speak for Themselves, which formed in opposition to the contraception coverage provision, has filed a brief. Written by lawyer Helen Alvaré, who has said that the availability of contraception has led to the “immiseration of women,” the brief explains the group’s opposition to the regulation as “because the Mandate threatens religious freedom and proposes a reductionist and harmful understanding of women’s freedom.”
Alvaré reprises the “immiseration” theme in the brief, arguing that “even if contraceptives have the indirect beneficial effects HHS identifies, HHS does not indicate the size of these benefits, or whether they outweigh the adverse health outcomes caused by some contraceptives, or the adverse effects of the immiseration of women in a sex and marriage marketplace shaped by contraception.”