The U.S. Supreme Court argument in Sebelius v. Hobby Lobby Stores raised some fascinating issues and highlighted once again how courts and news media, when confronted with bioethical issues, often ask the wrong questions.
Hobby Lobby Stores Inc. brought the case because it objected to the Affordable Care Act’s requirement that companies provide health insurance coverage for what, in its view, were “abortion-causing drugs.” Contrary to reports in the press, Hobby Lobby did not object to providing coverage for its employees’ contraceptives, but it said its religious beliefs could not countenance providing coverage for those drugs that terminated pregnancies.
The drugs at issue were approved by the U.S. Food and Drug Administration as emergency contraceptives, particularly ones commonly referred to as Plan B and Ella, as well as a copper intrauterine device. Women purchase such items after unprotected sex as a means of after-the-fact contraception. The question presented to the court was whether the coverage requirement violated the Religious Freedom Restoration Act of 1993 because it placed a burden on Hobby Lobby’s sincerely held religious beliefs that abortion is immoral.
Much of the argument, which lasted an hour and 28 minutes, an eternity for the court, concerned whether a for-profit corporation, as opposed to individuals, could possess religious-liberty rights. This was also the focus of the attendant media coverage. Could a company with 500 stores in 39 states have a religious belief?
That may be an interesting question but this wasn’t the case to answer it. The question should have been not whether a company could have religious beliefs, or even whether they were sincerely held. The initial question should have been whether a company or an individual could even assert a claim under the Religious Freedom Restoration Act when the basis of the claim rested on a false scientific assumption. The real issue, which should have made the lofty constitutional issues moot, is whether the subject drugs are “abortion-causing” or what are called “abortifacients,” such as the still controversial drug RU 486, marketed in the United States as Mifeprex.
Indeed, at the oral argument, Justice Antonin Scalia presumed he knew the answer to that question when he asked counsel for the government: “You’re talking about, what, three or four birth controls, not all of them, just those that are abortifacient.” Chief Justice John Roberts similarly asked: “Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions.”
Such views by Hobby Lobby, if a company can have a view, and by these conservative male justices ignore science and reflect a misunderstanding of the reproductive process. As the amicus brief of the American College of Obstetrics and Gynecology explained, there is no scientific evidence to suggest these drugs are abortifacients. To the contrary, they prevent pregnancies, not terminate them.
The bioethical — and legal — question is not when life begins. That can be left to the theologians and the radio talk show hosts. The question is when does pregnancy begin? An individual sperm fertilizes an egg in the woman’s fallopian tube. The united fertilized egg takes about a week to travel up the tube to the uterus, where it is either implanted or washed away in the menstrual cycle. Without any of the drugs at issue, the chance for either happening is about 50-50. Because of these odds, virtually every medical organization defines pregnancy not at fertilization but at implantation. The federal government has codified this fact at Section 46.502(b) of the Federal Register, which provides: “Pregnancy encompasses the period of time from implantation until delivery.” The legislatures of 18 states, however, take the contrarian and unscientific view that pregnancy begins at fertilization.
Scientists and physicians also uniformly agree that the drugs at issue primarily prevent or disrupt ovulation. But, they say, even if they somehow inhibit implantation, as their labels suggest — and there is little evidence they do — the drugs should be characterized as contraceptives, which prevent pregnancies, and not as abortifacients, which terminate them. If the drugs act between fertilization and implantation, there is no pregnancy to terminate and thus no abortive effect. After implantation and the beginning of pregnancy, the drugs have no effect whatsoever. One can swallow a full bottle and the embryo will not be aborted. In fact, the active ingredient in one of the drugs, progesterone, is sometimes given to pregnant women to preserve their pregnancies.
As Arthur Caplan, head of the division of bioethics at New York University, told me, “What is worse is the fact that the only way to view these drugs as abortion agents is to take the position that a fertilized egg is an embryo rather than what it is — an unimplanted conceptus with no prospect of becoming an embryo, much less a fetus, much less a baby, unless it implants into a womb. The view of the justices who offered it is a particular, distinct theological view of human reproduction, not one found in science or medicine.”
Most observers of the oral argument are convinced this will be another 5-4 decision, with Justice Anthony Kennedy as the swing vote. But if the decision tackles the question of whether a company can have a religious objection to providing insurance coverage for abortion-inducing medications, whichever way it goes, it will be based on facts that have nothing to do with the resulting law.
Alan Milstein is a shareholder at Sherman Silverstein Kohl Rose and Podolsky in Moorestown, N.J., and teaches bioethics at Temple University James E. Beasley School of Law.