The Supreme Court will soon decide in Sebelius v. Hobby Lobby the legality of the mandate under Obamacare that for-profit institutions must insure contraceptive care for their female employees. Dozens of companies have sued the government claiming that the owners’ freedom of religion is being violated by having to pay for medication that they believe contravenes Christian dogma about the sanctity of human life.
The implicit rift in these cases is actually one about ethics — what constitutes right and wrong.
When religious authorities or the religious owners of companies complain about the provision of contraceptives like Plan B and the violation of their consciences and religious liberties, what they are saying is that the use of these drugs — by destroying a fertilized and thus ensouled egg — is tantamount to murder and that by having to pay for these drugs, the owners are complicit in that murder.
This is an ethical claim – one that deserves rigorous scientific scrutiny.
The first counterargument is a simple one. Hobby Lobby and other plaintiffs contend that contraceptives like Plan B and Ella are abortifacients, meaning they destroy a fertilized ovum. This is scientifically dubious, if not wholly untrue.
However, even if we were to grant that emergency contraceptives like Ella do prevent or even undo implantation (as it has in non-human animals but not empirically in pregnant women), we must be honest about what this means. At the time of implantation, the collection of cells is not yet called a fetus; it is a blastocyst comprised of just a few hundred cells.
Here is where science, which is fallaciously asked to leave the room when questions of morality arise, is especially relevant.
Science has shown that there is a straightforward relationship between biological and neurological complexity and the range of conscious experience. This scientific knowledge foregrounds our moral deliberations, as we naturally give more consideration to organisms with greater biological complexity and are capable of vast changes in conscious experience.
This explains why humans are far more considerate of the suffering of mammals than of plants: someone who sets a cat on fire is likely to turn up on the evening news, but a man who yanks dozens of unconscious weeds from his yard is simply being a good gardener.
Those who equate the death of a days-old cluster of unconscious cells with the murder of a fully-conscious human being — or lesser mammal for that matter — are being unjustly respected when we recognize their beliefs as having any real connection to ethical principles or real-world moral decisions.
The implicit relationship between science and morality has long informed our jurisprudence, even when we did not explicitly recognize this relationship. The discrediting of the pseudoscience of phrenology — comparative skull measurement, for instance — certainly did damage to the moral foundations of racism, slavery, and segregation.
The question that the Supreme Court faces then is whether employers may deny medical care for pseudoscientific reasons.
We might sharpen this tension by imagining that a Christian Scientist does not want to insure life-saving care for one of his employees who does not share his faith. Bracketing the question about whether this employee should find employment at a more accommodating company, the central question is, should the government respect the employer’s religious beliefs?
Or, in other words, is there not an occasion where the state has a rational basis to say that some religious beliefs are so at odds with a modern understanding of the origin and nature of pain and suffering that they should not be legally protected?
Framed in this manner, the answer seems quite clear.
In fact, Bishop William Lori, making the case for a religious exemption from the contraception mandate in 2012, was asked this very question before a congressional committee by Rep. Bobby Scott (D-Va.). Bishop Lori responded that the right of conscience should be accommodated “unless there is a compelling government interest.”
Bishop Lori wanted an exemption for members of his own sect, but openly recognized that with regard to other sects (like Christian Scientists), the state may have a legitimate interest in overriding faith-based objections.
Here’s the rub: people have the right to their beliefs and to act on them within the bounds of the law. However, conscientious objections, religious or otherwise, are not strong enough reasons to opt out of the law. Otherwise, anarchists would be excused from paying taxes and fundamentalist Mormons would continue pushing children into plural marriages.
In fact, it is the very question of polygamy that prompted Justice Antonin Scalia to quote in his 1990 ruling against Native Americans’ use of peyote from the 1878 decision upholding the ban on plural marriage:
To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
Let us hope that the justices consider these sage words and rule against Hobby Lobby when the case is decided some time this summer.