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.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Commentary Race

Have a Problem With Black-Only Spaces? Get Over It

Ruth Jeannoel

As the parade of police killings of Black people continues, Black people have a right to mourn together—and without white people.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

Dear Non-Black People:

If you hear about a healing space being organized for Black folks only, don’t question or try to be part of that space.

Simply, DON’T.

After again witnessing the recorded killings of Black people by police, I am trying to show up for my family, my community, and victims such as Alton Sterling and Philando Castile. I am tired of injustice and ready for action.

But as a Black trans youth from the Miami, Florida-based S.O.U.L. Sisters Leadership Collective told me, “Before taking action, we must create space for healing.” With this comment, they led us in the right direction.

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Together, this trans young person, my fellow organizers, and I planned a Black-only community healing circle in Miami. We recognized a need for Black people to come together and care for each other. A collective space to heal is better than suffering and grieving alone.

As we began mobilizing people to attend the community circle, our efforts were met with confusion and resistance by white and Latinx people alike. Social media comments questioned why there needed to be a Black-only space and alleged that such an event was “not fair” and exclusionary.

We know the struggle against white supremacy is a multiracial movement and needs all people. So we planned and shared that there would be spaces for non-Black people of color and white people at the same time. We explained that this particular healing circle—and the fight against police violence—must be centered around Blackness.

But there was still blowback. One Facebook commenter wrote,

Segregation and racial separation is not acceptable. Disappointing.

That is straight bullshit.

To be clear, Black-only space is itself acceptable, and there’s a difference between Black people choosing to come together and white people systematically excluding others from their institutions and definitions of humanity.

But as I recognize that Black people can’t have room to mourn by ourselves without white tears, white shame, white guilt—and, yes, white supremacy—I am angry.

That is what racist laws have often tried to do: Control how Black people assemble. Enslaved people were often barred from gathering, unless it was with white consent or for church.

Even today, we see resistance when Black folks come together, for a variety of reasons. Earlier this year, in Nashville, Tennessee, Black Lives Matter activists were forced to move their meeting out of a library because it was a Black-only meeting. Last year, students at University of Missouri held a series of protests to demand an end to systemic racism and structural racism on their campus. The student group, Concerned Students 1950, called for their own Black-only-healing space, and they too received backlash from their white counterparts and the media.

At our healing circle in Miami, a couple of white people tried to be part of the Black-only space, which was held in another room. One of the white youths came late and asked why she had to be in a different room from Black attendees. I asked her this question: Do you feel like you are treated the same as your Black peers when they walk down the street?

When she answered no, I told her that difference made it important for Black people to connect without white people in the room. We talked about how to engage in political study that can shape how we view—and change—this world.

She understood. It was simple.

I have less compassion for adults who are doing social justice work and who do not understand. If you do not recognize your privilege as a non-Black person, then you need to reassess why you are in this movement.

Are you here to save the world? Do you feel guilty because of what your family may have done in the past or present? Are you marching to show that you are a “good” person?

If you are organizing to shift and shake up white supremacy but can’t understand your privilege under this construct, then this movement is not for you.

For the white folk and non-Black people of color who are sincerely fighting the anti-Blackness at the root of most police killings, get your people. Many of them are “progressive” allies with whom I’ve been in meetings, rallies, or protests. It is time for you to organize actions and events for yourselves to challenge each other on anti-Blackness and identify ways to fight against racial oppression, instead of asking to be in Black-only spaces.

Objecting to a Black-only space is about self-interest and determining who gets to participate. And it shows how little our allies understand that white supremacy gives European-descended people power, privilege, and profit—or that non-Black people of color often also benefit from white supremacy just because they aren’t Black in this anti-Black world.

Our critics were using racial privilege to access a space that was not for them or by them. In the way that white supremacy and capitalism are about individualism and racing to the top, they were putting their individual feelings, rights, and power above Black people’s rights to fellowship and talk about how racism has affected them.

We deserve Black-only community healing because this is our pain. We are the ones who are most frequently affected by police violence and killings. And we know there is a racial empathy gap, which means that white Americans, in particular, are less likely to feel our pain. And the last thing Black people need right now is to be in a room with people who can’t or won’t try to comprehend, who make our hurt into a spectacle, or who deny it with their defensiveness.

Our communal responses to that pain and healing are not about you. And non-Black people can’t determine the agenda for Black action—or who gets a seat at our table.

To Black folks reading this article, just know that we deserve to come together to cry, be angry, be confused, and be ready to fight without shame, pain, or apologies.

And, actually, we don’t need to explain this, any more than we need to explain that Black people are oppressed in this country.