Analysis Law and Policy

Will the Supreme Court Ignore the Evidence? Facts vs. Beliefs in the ‘Hobby Lobby’ Case

Imani Gandy

Should the Supreme Court rule in Hobby Lobby's favor, it will have signaled to every subsequent litigant that science has no place in the courtroom. That should scare us all.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

In the religious and political fervor surrounding the Hobby Lobby and Conestoga Wood Specialties cases, which the U.S. Supreme Court is expected to rule on any day now, three simple statements of fact about women’s health and reproduction seem to have gotten lost: Contraceptives prevent pregnancy, abortifacients terminate a pregnancy, and a pregnancy begins at implantation. So contraceptives by definition are not abortifacients because they prevent a pregnancy; if they work, there is no pregnancy to be terminated.

These statements are not up for debate. They’re not subject to any “well actually” muddying of the waters. They are incontrovertible facts based in science.

Nevertheless, should the Supreme Court rule in Hobby Lobby and Conestoga Wood’s favor, and allow them to avoid their obligations under the Affordable Care Act because they are opposed to abortion-inducing drugs and they “believe” that certain emergency contraceptives qualify as such, those three factual statements will become mere matters of opinion.

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Undermining these basic scientific facts has been crucial to the strategy that Hobby Lobby and other corporations have employed during their holy crusade against the birth control benefit. And partisan organizations like the Charlotte Lozier Institute, the research arm of the virulently anti-choice Susan B. Anthony List, are eager to assist. They conduct “research” and propagate agenda-driven nonsense from non-credible scientists, all the while ignoring and dismissing actual scientists: The American Congress of Obstetricians and Gynecologists (ACOG), which is world renowned for being comprised of premier experts in women’s health, and whose definition of pregnancy has been the standard since 1970, for example, is dismissed as “rabidly pro-abortion.”

Birth control benefit opponents obfuscate basic concepts about reproduction and women’s health. They attempt to turn a discussion about when pregnancy begins—and therefore when and how a pregnancy can be terminated—into a discussion about when life begins. But as Rewire’s own Jodi Jacobson wrote in an article entitled “Life Begins At Conception. That’s Not the Point”:

Human life has to begin with conception, but conception is not the same thing as pregnancy, the latter of which reason, science, and medical evidence agree begins when a fertilized egg successfully implants in the uterus and develops into a healthy embryo.

Reason, science, and medical evidence are dangerous to the anti-contraception agenda. Simple biological truisms—that pregnancy begins at implantation, for instance—become, according to the Charlotte Lozier Institute, “Orwellian new-speak” designed to obscure the “reality” that all hormonal contraceptives potentially are abortion pills. The fact that this “reality” is actually a fantasy doesn’t matter.

In pursuit of their fantasy, birth control benefit detractors dismiss any person or organization that doesn’t march in lockstep with their junk science agenda. They happily ignore that the Food and Drug Administration, the National Institutes of Health, the American Medical Association, and the medical community writ large agree that emergency contraceptives are not “abortion-inducing drugs.” They ignore the legal opinions of judges like Edward Korman, who, in Tummino v. Hamburg—which ultimately required that Plan B be made available over-the-counter—called the idea that Plan B could affect implantation “scientifically unsupported speculation.” 

Birth control benefit opponents even ignore people in their own camp: The official journal of the Catholic Health Association, for example, published an article stating that Plan B works only as a contraceptive and is not “abortion-inducing.”

Dennis Sullivan, who is the director of the Bioethics Center at Cedarville University, and an abortion foe, published an article stating that he had found no evidence that Plan B causes abortion. He even told Christianity Today, ”Our claims of conscience should be based on scientific fact, and we should be willing to change our claims if facts change.” 

That, too, doesn’t matter to birth control benefit naysayers.

Given the concerted effort by anti-contraception forces to introduce as much confusion as possible to the issue of whether contraceptives cause abortion (they don’t), it is unsurprising that Hobby Lobby, and the family that owns it—the Greens—maintain beliefs about contraception that don’t reflect scientific reality.

What is surprising, however, is that no court seems willing to address whether or not the beliefs held by the Greens and other plaintiffs who have filed similar lawsuits are based in fact.

Hobby Lobby and the Greens make two assertions in their lawsuit. First, they allege their belief that life begins at conception and that any action that might potentially harm a fertilized egg, including any action that might prevent a fertilized egg from implanting in the uterus, is immoral. Second, they assert that Plan B and ella “could prevent a human embryo … from implanting in the wall of the uterus.”

The first assertion is a religious belief, and the Greens are welcome to it. It’s not my place to quibble with their religious beliefs no matter how absurd I think they are. So sacred are individuals’ religious beliefs that courts rarely challenge or question them.

The second assertion, however, is one of scientific fact and must be subject to court inquiry. 

David Green, in an editorial for USA Today, wrote, “Being Christians, we don’t pay for drugs that might cause abortions. Which means that we don’t cover emergency contraception, the morning-after pill or the week-after pill.” This is a scientific claim.

So why hasn’t any court required Hobby Lobby or the Greens to substantiate the claim that Plan B and ella “might cause abortions”? Both the district court and the Tenth Circuit Court of Appeals simply accepted this claim at face value. As Chief Judge Mary Beck Briscoe noted in her opinion dissenting from the Tenth Circuit’s ruling in favor of Hobby Lobby, “plaintiffs’ allegations regarding the abortion-causing potential of the challenged drugs are subject not only to examination but evidentiary proof.”

Had any court subjected the Greens’ claims to evidentiary proof, it surely would have reached the same conclusion shared by the scientific community: None of the mandated contraceptive devices to which the Greens and Hobby Lobby object are “abortion-inducing.”

As a group of health-care professionals with expertise in women’s health, including ACOG, concluded in an amicus brief submitted to the Supreme Court:

Abortifacient has a precise meaning in the medical and scientific community and it refers to the termination of a pregnancy. Contraceptives that prevent fertilization from occurring, or even prevent implantation, are simply not abortifacients regardless of an individual’s personal or religious beliefs or mores.

I don’t doubt that the Greens and plaintiffs like them are sincere in their beliefs that Plan B and ella are abortion-inducing drugs. But a sincerely held belief can be wrong, and courts must challenge the facts underlying a religious belief—otherwise there’s virtually nothing constraining religious believers from seeking legal protection based on whatever they pull out of thin air.

Imagine the chaos that would reign if people could bring religious challenges to laws based on their sincere belief in something that has no basis in reality. Today, Hobby Lobby and the Greens believes that Plan B and ella are abortifacients and refuse to provide insurance plans that include coverage for the drugs. What’s to stop them from refusing to provide insurance plans that include coverage for ibuprofen based on a far-out claim that ibuprofen causes abortions?

At what point does this madness end?

The Greens may be sincere in their religious beliefs, but to the extent that their “religious beliefs” are actually scientific claims, courts should require them to provide evidence to support those claims just like any other factual question. And in this case, the Greens’ supposed religious beliefs are actually no such thing—they are sincerely held, but wrong, scientific views. And should the Supreme Court rule in their favor, it will have signaled to every subsequent litigant that science has no place in the courtroom.

That should scare us all.

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