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

July 6

Among the criticisms of the Supreme Court’s decision last week in Burwell v. Hobby Lobby is that it is “anti-science.”  Specifically, many charge that the majority’s decision in favor of two companies that objected to paying for a handful of contraceptive methods lacked any scientific basis.

Although this charge is nowhere to be found in Justice Ginsburg’s forceful dissent, it has made the rounds among pundits.  The Daily Beast‘s Sally Kohn decried the Court’s reliance on “bunk science” and The Nation‘s Reed Richardson claimed the Hobby Lobby majority’s opinion rested on “specious scientific claims.”  “Alito and the four other conservative justices on the court were essentially overruling not just an Obamacare regulation, but science,” reported Mother Jones, while another MoJo  story ranked Hobby Lobby to be among the Supreme Court’s four “biggest science blunders.”  And over at The Incidental Economist, Austin Frakt simply declared “The majority of the Supreme Court doesn’t get science.”

These critics are mistaken.  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.

Let’s start with the law.  When a religious individual or institution claims that a government policy impermissibly burdens the exercise of religion, the essential truth of the religious objector’s claim is not at issue.  As Eugene helpfully explained in this post, “under RFRA, the question whether there is such a substantial burden should be based on the Hobby Lobby owners’ sincere judgment about what constitutes culpable complicity with sin, and not on the courts’ judgment.”  This principle was accepted by all of the justices in Hobby Lobby.  As Justice Ginsburg conceded in her dissent, courts must “accept as true” a RFRA plaintiff’s sincerely held religious beliefs and are not to question “the plausibility of a religious claim.”  Rather, at issue in a RFRA case is whether the government policy at issue imposes a “substantial burden” on the plaintiff and, if so, whether the government can show a compelling interest in subjecting the plaintiff to the policy and that there is no less-restrictive alternative to meet the government’s interest.

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.

At this point some critics may respond that it’s one thing for a religious adherents to make spiritual claims, but quite another for them to rest a religious claim on a demonstrably false fact about the physical world.  Perhaps, but that was not what was at issue here.  The Hahns and Greens believe life begins at conception.  This is a religious belief.  Whether or not medical experts or federal law define life the same way is irrelevant, as is the fact that medical authorities define implantation of the fertilized egg as the start of a pregnancy.  It is the Hahns and the Greens sincere religious belief that these four methods of contraception are capable of causing a grievous wrong, and that is not something for the courts to question.

Some critics note that current scientific evidence undermines claims that the four methods at issue prevent implantation. This is true, but also fails to substantiate the Hobby Lobby-is-anti-science claim.   The best scientific evidence available suggests that these forms of contraception rarely, if ever, prevent implantation, but the evidence is not-yet-conclusive and RFRA plaintiffs are hardly required to adopt prevailing scientific views to press their claims.  As Nicholas Bagley notes:

Scientists can demonstrate that the challenged forms of birth control almost never prevent implantation of a fertilized egg. But it’s very hard for scientists to prove that it can never happen.

That’s where religion comes in. Does facilitating the use of contraception that might conceivably prevent implantation, even if that risk is very low, contravene some religious precept? Science can’t answer that question. A religious person might think that it’s wrong—sinful—to commit an act that presents a risk, however remote, of something very bad. Should the courts be in the business of second-guessing those kinds of religious claims? Among other things, doing so raises the possibility that the courts would uphold mainstream religious values while dismissing religious views they thought were kooky.

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.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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