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Symposium: In a battle of semantics, the family businesses win with scientific facts

The following contribution to our contraceptive mandate symposium comes from Mailee R. Smith, Staff Counsel at Americans United for Life (Counsel of Record for Drury Development Corporation et al. in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius).

Semantics games cloud the basic facts involved in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.  In an effort to discredit the sound basis on which family businesses like Hobby Lobby and Conestoga oppose the forced coverage of “emergency contraceptives,” the government and its amici attempt to blur the lines of how such drugs and devices work.

But the scientific facts support the family businesses.  The bottom line is that a new human organism comes into existence at fertilization; “emergency contraception” can work by preventing an already-developing human organism from implanting in the uterus (effectively terminating its life); and forcing employers to provide coverage of such life-ending drugs and devices contradicts this nation’s long-standing commitment to the freedom of conscience.

It is undisputed that a new, distinct human organism comes into existence during the process of fertilization.  Scientific literature is replete with examples of this universally accepted fact.  As Marsden et al. explain, “[t]he fusion of sperm and egg membranes initiates the life of a sexually reproducing organism.”  Likewise, Okada et al. explain that the “life cycle of mammals begins when a sperm enters an egg.”  The examples could go on and on.

The government’s own definition states that a new human organism begins at fertilization.  According to the National Institutes of Health, “fertilization” is the “process of union” of two gametes (i.e., ovum and sperm) “whereby the somatic chromosome number is restored and the development of a new individual is initiated.”   Thus, in the context of human life, a new individual human organism is initiated at the union of ovum and sperm.

Enter the Affordable Care Act, which requires that all private insurance plans “provide coverage for and shall not impose any cost sharing requirements for . . . preventive care and screenings [for women].”  The government’s regulatory mandate implementing this provision requires that nearly all private health insurance plans fully cover, without co-pay, all drugs and devices labeled by the Food and Drug Administration (FDA) as “contraception.”

Herein lies the problem: many drugs and devices labeled by the FDA as “contraception” have post-fertilization mechanisms of action – which means that these drugs and devices can work after a new human organism is created (at fertilization) but before implantation.

The government and its amici have at times tried to blur the distinct line of when a human organism begins with semantics about when “pregnancy” begins.  Relying on a definition of pregnancy that begins at “implantation,” the government and its amici argue that “emergency contraceptives” are not “abortifacients.”

However, such semantics arguments miss the mark and skirt the scientific facts.  When “pregnancy” begins is not the scientific benchmark here; the relevant scientific benchmark is when the life of a human organism begins – and that is undisputedly at fertilization.  “Emergency contraceptives” might not end a “pregnancy” under the government’s definition, but they can end the life of a unique human being. What the family businesses conscientiously oppose is not simply the ending of a “pregnancy,” but the ending of a human life itself.

There is no dispute among the parties that at least some of these drugs have post-fertilization (i.e., life-ending) mechanisms of action and can prevent implantation of an already-developing human embryo.  The government concedes that various “emergency contraceptives” can work after fertilization but before implantation.  For example, the labeling of the “emergency contraceptive” Plan B acknowledges that the drug can prevent implantation of an already-developing human embryo.  Likewise, the drug ella and IUDs can prevent a developing human embryo from implanting in the uterus.  In fact, ella can also kill an implanted embryo by essentially starving him or her to death.

Thus, under the government’s mandate, employers are required to provide coverage for drugs or devices that can kill already-developing human embryos.  The mandate forces employers – including family businesses like Hobby Lobby and Conestoga – to choose between either following their faith, and in turn facing ruinous fines, or surrendering their freedom under the unlawful mandate.

It is exactly this type of coercive dichotomy that runs contrary to this nation’s longstanding commitment to the freedom of conscience guaranteed by the U.S. Constitution.

Freedom of conscience is a fundamental right that has been respected and protected since the founding of our nation.  Since that time, the paramount importance of this historic right has been affirmed by our Founders, by the Supreme Court, and by Congress.  In short, history, tradition, and jurisprudence affirm that a person cannot be forced to commit an act that is against his or her moral, religious, or conscientious beliefs – including payment for such an act – and this history, tradition, and jurisprudence unequivocally support the family businesses in these cases.

The First Amendment guarantees that Congress shall make no law prohibiting the free exercise of religion.  At the very root of that promise is the guarantee that the government cannot force a person to commit an act – or pay for an act – in violation of his or her religion.

The signers to the religion provisions of the First Amendment were united in a desire to protect the “liberty of conscience.”  Guaranteeing freedom of conscience was of utmost importance to our Founding Fathers, who had recently shed blood to throw off a government which dictated and controlled their religion and practices.

For example, Thomas Jefferson maintained that forcing a person to contribute to – much like forcing the family businesses to pay for – a cause that he or she abhorred was “tyrannical.”   This belief formed the basis of Jefferson’s bill in Virginia, which prohibited the compelling of a man to furnish money for the propagation of opinions to which he was opposed.   Jefferson – who considered it “tyrannical” to force a person to contribute monetarily to a position he disagreed with – would likely be aghast at a law requiring payment for a drug that is conscientiously objectionable.

This commitment to the freedom of conscience is echoed throughout Supreme Court jurisprudence.  “Freedom of conscience” is referenced explicitly throughout the Court’s decisions, such as in the 1969 case Tinker v. Des Moines, in which the Court refers to “freedom of conscience” as being “constitutionally protected.”  From public school cases reviewing obligatory pledge recitations to draft cases considering the rights of men conscientiously opposed to war, the Court has consistently ruled in favor of protecting the freedom of conscience of every American.

In the context of an obligatory pledge recitation, the Court established the principle that to force parents and children to choose between their religious beliefs and their public education is a clear violation of their First Amendment rights.  Likewise, forcing the family businesses to choose between adhering to their religious convictions with the potential of heavy fines – or going out of business altogether – or complying with the unlawful mandate is an unconstitutional exercise of state power.

While pledge and draft cases arguably differ from some of the issues in Hobby Lobby and Conestoga, they do demonstrate the Court’s historic and unwavering commitment to freedom of conscience that should extend to the mandate cases.

Congress likewise has enacted numerous measures expressing the federal government’s commitment to protecting freedom of conscience.  For example, it addressed the issue of conscience just weeks after the Supreme Court decided Roe v. Wade.  In 1973, Congress passed the first of the Church Amendments.   The original and subsequent Church Amendments protect healthcare providers from discrimination by recipients of U.S. Department of Health and Human Services (HHS) funds on the basis of their objection, because of religious belief or moral conviction, to performing or participating in any lawful health service or research activity.

Congress has also acted to provide specific conscience protections in the provision of contraceptives.  For example, in 2000, Congress passed a law requiring the District of Columbia to include a conscience clause protecting religious beliefs and moral convictions in any contraceptive mandate.   Similarly, in 1999, Congress prohibited health plans participating in the federal employees’ benefits program from discriminating against individuals who refuse to prescribe contraceptives.

These provisions – and many others like them – highlight the commitment of the American people to protect individuals and employers from mandates or other requirements forcing them to violate their consciences and/or religious and moral beliefs, and demonstrate that the government’s mandate ignores the longstanding national commitment to protect the freedom of conscience.

No matter how the government spins the issues and tries to frame the semantics, the science, history, and tradition are on the side of Hobby Lobby and Conestoga.  A new human organism begins at fertilization, and “emergency contraceptives” can kill already-developing human organisms.  Forcing employers to pay for drugs that can end a human life constitutes forced participation in the act itself.  The government’s mandate is nothing less than coercion of our nation’s businesses and citizens which cannot stand under our constitutionally guaranteed freedom of conscience.

Recommended Citation: Mailee Smith, Symposium: In a battle of semantics, the family businesses win with scientific facts, SCOTUSblog (Feb. 25, 2014, 11:16 AM),