Kavanaugh is right on _Hobby Lobby_

Which of the following questions is one that the US judicial system can answer?

The answer is that the first two questions are suitable questions for our court system, but the latter two aren’t. That’s because the court works in matters of fact and legal reasoning. If a question cannot is not falsifiable–that is, if it cannot be confirmed or disconfirmed through factual analysis–or addressed through legal reasoning, it’s not a question for the judicial system. The judicial system can tell us if a person is guilty of a crime (a fact) and what the appropriate punishment is, but it can’t tell us if human nature is inherently sinful. It can tell us what religious liberty entails (a legal issue) and whether that liberty has been infringed upon (a factual one), but it cannot tell us if Jesus’ salvific death was for all of humanity or just those elected at the start of time. That’s because questions of this second type cannot be addressed by factual analysis or legal reasoning. So courts stay out of that business.

Except when they don’t, like in Burwell v. Hobby Lobby.

This week, Supreme Court nominee Brett Kavanaugh said in his vacuous hearing that Hobby Lobby was about birth control as a form of abortion. Democratic Senator Dianne Feinstein corrected him via Twitter by saying it was about the right of closely held private companies to refuse part of the Affordable Care Act’s contraception mandate. She is correct–but correct in the way that it’s correct to say that the Civil War was about states’ rights. Technically true, but it misses the real issue.


A quick review: The privately-held Hobby Lobby (joined by a Mennonite-owned cabinetry company headquartered in East Earl, PA) sued the Obama administration in order to avoid paying for employee insurance that would include the coverage of some kinds of contraception. Specifically, the company objected to paying for emergency contraceptive pills (high doses of hormonal birth control pills used after sex to prevent pregnancy) and intrauterine devices (IUDS), which are removable, long-term implants in the uterus.  Hobby Lobby argued that such forms of contraception are abortifacients, meaning that they induce abortions.

Image result for IUD

Whether you define “abortion” as the expulsion of a fertilized-but-not-implanted egg (that is, if you think pregnancy starts at fertilization) or you define it as the expulsion of an implanted egg (that is, if you think pregnancy starts at conception), neither emergency contraceptive pills nor IUDs induce abortion. Both of them only work by preventing the fertilization of eggs. That’s it. If an egg has been fertilized, they don’t prevent it from being implanted. If it has been implanted, they don’t prevent it from staying implanted.

The science on this is firm. We have lots of ways of measuring this, but here is just one: if they prevented the implantation of fertilized eggs (the strictest definition of “abortion”), then we would expect to see a lower rate of ectopic pregnancies among women who use them compared to women who don’t (since they would expel fertilized eggs rather than let them implant outside of the uterus). But that’s not the case. Women using IUDs and emergency contraception have comparable rates of ectopic pregnancies because these forms of birth control don’t prevent fertilized eggs from implanting.

Now, you can object to birth control on religious grounds, like you think it’s a sin. A court will have nothing to say about that, because a court doesn’t rule on sin.

But a court does rule on facts, and the fact is: the kinds of birth control that Hobby Lobby objected to don’t cause abortions, regardless of when you think pregnancy starts.

Which is why Hobby Lobby should never have been heard by any court. By listening to an argument that is about religious claims that can’t be falsified, the Supreme Court legitimized the idea that purely religious claims are within its jurisdiction. They’re not.

Hobby Lobby isn’t a dangerous decision so much because of it’s conclusion that closely-held private companies can deny employees benefits that include IUDs and emergency contraception. (I mean, that’s bad enough.) The real danger is that the Court has allowed this kind of argument to be entertained at all.

Conservative Christians may rejoice that their religious claims were taken seriously by the court. Long-term, they should be very wary about letting a court rule on the validity of a claim that can’t be confirmed by science. That they aren’t is a signal that they think that the government will always rule in their favor.

Kavanaugh was honest in his answer: Hobby Lobby was about defining birth control that prevents fertilization as abortion. It was also about making sure that conservative Christians’ religious claims would be taken seriously in court, even when they lack factual merit. And it was about expanding the authority of the Court to hear such cases. With Kavanaugh on the bench, this is just what they’ll be doing. Feinstein was right when she included in her tweet the hashtag #whatsatstake, but it turns out that much more than the right to birth control is on the table: it’s a whole revision of our judicial system to give authority to conservative Christian theology. 


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