Monday, July 07, 2014

No, the Supreme Court’s Hobby Lobby decision is not based upon a scientific mistake - The Washington Post

There are reasonable arguments to be made against the Supreme Court’s Hobby Lobby decision, but the charge that the decision is based on science fiction is not among them.  The scientific soundness of a religious objector’s beliefs is not at issue in religious liberty cases and, even if it were, there was a reasonable (if not uncontroversial) basis for the specific factual claims upon which Hobby Lobby’s claim was based.

In Hobby Lobby, the Greens and the Hahns (the owners of Hobby Lobby and Conestoga Wood, respectively) claimed that providing insurance coverage for four forms of contraception would violate their religious beliefs.  They claimed that this is because they believe the four forms of contraception at issue (“Plan B,” Ella, and two types of IUD) are capable of terminating a pregnancy.  In making this claim, the Greens and the Hahns embraced the view that a pregnancy begins at conception, rather than at implantation (which is how pregnancy is defined by most medical authorities and under federal law).  This is not relevant, however.  They could have also claimed that pregnancy begins when a woman is visited by the Flying Spaghetti Monster, and that the challenged forms of contraception chase the Spaghetti Monster away.  Under RFRA, a religious adherent’s beliefs are taken as a given precisely because many religious claims will strike non-believers as strange or incredible.  There’s no scientific evidence for transubstantiation, but that would hardly matter to a RFRA claim that imposed a substantial burden on those who wish to partake in communion.

As Bagley notes further, the federal government accepted the plaintiffs’ characterization of the scientific evidence, if not their conclusion that preventing implantation of an egg is the equivalent of an abortion.  The Food & Drug Administration’s website notes that all four forms of disputed contraception may prevent implantation, as do the FDA-approved labels (as noted in footnote 4 of the government’s brief).  An amicus brief submitted at the certiorari stage on behalf of medical organizations disputes whether it is proper to label these contraceptive methods as “abortifacients,” insofar as they all act before the start of a pregnancy (implantation). Yet, as Ed Whelan notes, the brief also concedes the possibility that these contraceptive methods may prevent implantation.
Assuming, as the weight of current scientific evidence suggests, that it is exceedingly rare for any of these methods to prevent implantation or otherwise cause the termination of a fertilized egg, it is not unscientific to adopt a more precautionary position due to religious or moral concerns, and it is hardly “anti-science” for the courts to accept such a religious belief when evaluating a RFRA claim.  The plaintiffs in Hobby Lobby advanced a claim based on religious belief, and that is how all nine justices on the Court treated it.
Science retains substantial authority in our political discourse.  This makes it appealing to tar one’s political opponents with an “anti-science” brush. Yet in their zeal to affix the “anti-science” label to the Supreme Court, Hobby Lobby critics have gotten ahead of themselves.  Whatever the merits of other critiques of the Hobby Lobby opinion, this one falls apart.

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