Why the Supreme Court Ignored Science in Hobby Lobby

Some friendly pointers for the justices in the wake of their decision.

WASHINGTON, DC - JUNE 28: Obamacare supporters and protesters gather in front of the U.S. Supreme Court to find out the ruling on the Affordable Health Act June 28, 2012 in front of the U.S. Supreme Court in Washington, DC. The Supreme Court has upheld the whole healthcare law of the Obama Administration. (Photo by Alex Wong/Getty Images)
National Journal
Lucia Graves
July 10, 2014, 11:48 a.m.

There seems to be some con­fu­sion over at the Su­preme Court about what can and can’t in­duce abor­tion. In their rul­ing in the Hobby Lobby case last week, justices ig­nored the over­whelm­ing sci­entif­ic evid­ence that the con­tra­cept­ive meth­ods in con­ten­tion do not in fact cause abor­tion, as defined by the med­ic­al com­munity.

“If the own­ers com­ply with the [Health and Hu­man Ser­vices] man­date, they be­lieve they will be fa­cil­it­at­ing abor­tions,” Justice Samuel Alito wrote in the Court’s ma­jor­ity opin­ion. This, the justices de­term­ined, con­sti­tuted a “sub­stan­tial bur­den” on Hobby Lobby’s re­li­gious rights.

At is­sue are four types of con­tra­cept­ives: two of them, Ella and Plan B, are clas­si­fied as “morn­ing-after pills,” and two oth­ers, Mirena and ParaGard, are clas­si­fied as in­trauter­ine devices.

“There are med­ic­a­tions that pre­vent preg­nancy and there are med­ic­a­tions that cause abor­tions,” said Dr. Lin-Fan Wang, a fel­low with Phys­i­cians for Re­pro­duct­ive Health, an or­gan­iz­a­tion that aims to bring med­ic­al ex­pert­ise to dis­cus­sions of pub­lic policy. The meth­ods be­fore the Court, she ex­plained, “clearly worked to pre­vent preg­nancy,” not ter­min­ate it.

Even us­ing re­li­gious con­ser­vat­ives’ defin­i­tion of when life be­gins — the mo­ment an egg is fer­til­ized — three of the four con­tra­cept­ives can be proven not to lead to abor­tion, and sci­ent­ists are al­most as cer­tain the fourth doesn’t, either. (The New Re­pub­lic has a use­ful graph­ic and ex­plain­er on the mat­ter.)

Wang’s group was one of more than a dozen in the med­ic­al com­munity to sign on to an amicus brief de­tail­ing the sci­entif­ic dis­tinc­tions between con­tra­cept­ives and so-called abor­ti­fa­cients. But all that mattered to the Court from a leg­al stand­point was simply that Hobby Lobby be­lieves these con­tra­cept­ive meth­ods could some­how lead to abor­tions. As Talk­ing Points Memo ex­plained at some length Thursday, a stat­ute of the Re­li­gious Free­dom Res­tor­a­tion Act pro­tects re­li­gious be­liefs re­gard­less of evid­ence. Call it an art­icle of faith.

The Court also chose to ig­nore the health im­per­at­ives sur­round­ing birth-con­trol pills. As I high­lighted last week, the pill is used to treat a vari­ety of med­ic­al con­di­tions, in­clud­ing en­do­met­ri­os­is, which will af­fect an es­tim­ated 11 per­cent of wo­men in their life­times, and Poly­cyst­ic Ovary Syn­drome, which af­fects 5 per­cent to 10 per­cent of the fe­male pop­u­la­tion. For all wo­men, the pill is the best pro­tec­tion there is against ovari­an can­cer, one of the dead­li­est can­cers wo­men face, short of re­mov­ing your ovar­ies or be­ing born a man.

But you’d nev­er know that from read­ing the Court’s or­al ar­gu­ments, or ma­jor­ity opin­ion. Cor­por­a­tions and their re­li­gious be­liefs about the way abor­tion works trumped all that.

In the days since I wrote about the health im­per­at­ives of birth-con­trol pills, there’s been some de­bate about how use­ful those themes are to the fem­in­ist cause. But that these sci­entif­ic find­ings aren’t be­ing in­cluded in the Court’s ar­gu­ments should be troub­ling.

Here, for the Court’s con­sid­er­a­tion, are sev­er­al things wo­men have been known to do that don’t in fact cause abor­tion, no mat­ter your be­liefs: wear Spanx Un­der­wear; take long, sweaty bike rides; watch Rachel Mad­dow; read Nora Eph­ron; and — wait for it — take birth-con­trol pills.

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