by Doctor Science
As you would expect, I've got my own take on Sebelius vs. Hobby Lobby Stores. Last week, Eugene Volokh did a series of posts about the case; I made some comments, which I'll repost here, along with some other information I've dug up.
This illustration, like all others I've seen and like the BBC production, gets the characters' looks fundamentally wrong. Dinah is rather cool and bland -- not to say boring or plain -- in appearance, while Hetty is extraordinarily *cute* -- Elliot keep comparing her to kittens, lambs, etc. Jenna Coleman is the look they should be going for. But also [highlight to read]: Hetty is attractively "plump" -- enough that no-one realizes she's pregnant.
In reply to the series opener, I wrote:
I'd really like to see you address the issue which jumps out at me, as a scientist:It turns out that 30% may be a *drastic* underestimate. A recent study found that 70% of pre-implantation human embryos (i.e. those from the week between conception and implantation, when actual pregnancy begins) contained chromosomal abnormalities, the kind of thing that is usually *really* fatal, long before birth. Many of these embryos are "mosaics" of abnormal and normal cells, and may be able to eject the abnormal ones before they're killed, but these authors (and others) point out that human fertility is quite poor, compared to other mammals. Basically, a *lot* of human zygotes are duds, that could *never* grow up to be a live baby. Conception may be a first, necessary step toward getting an undoubted human being, but it's only a very sloppy, preliminary one.
The corporations' argument is based on a factually incorrect premise. any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo does *not* include either oral contraceptives nor Plan B. Fertilization occurs several days after coitus; Plan B, and The Pill even more so, don't do anything after conception, including preventing implantation.
As this paper points out, one of the problems in figuring out if contraception interferes with implantation is that a high proportion of "naturally" fertilized eggs don't implant, either. Surely "sufficiently risk" must refer to a risk *higher* than the natural risk, right? In which case even if oral contraception led to 30% of zygotes not implanting, that wouldn't be "sufficient risk" -- that would be business as usual.
For instance, William Saletan (who I generally can't stand, btw), reporting on a Pontifical University Bioethics Congress in 2005:
The priests scratch their heads. What does wanting have to do with it? Either the thing can grow into a baby, or it can't. If it can, it's sacred.What neither Saletan nor the priests realize that, for any given human zygote, whether it has the basic ingredients to grow into a baby is not a sure thing. There may not even be a 50% chance that it can ever have more "peopleness" than a hydatidiform mole or a teratoma -- both of which are, after all, alive and made with human DNA.
The final installment of Volokh's series is less of a legal exegesis than the rest, more of a meditation on the mutual duties of accommodation in a democracy. I commented:
It never ceases to astonish (and enrage) me how much discussion there can be about abortion, contraception, etc., without using the word "woman".This was not a very popular position over there. In reply to a commenter who said Additionally, Doctor Science says that the belief that life starts at conception is historically novel. It has been novel for several thousand years. The idea that it does not has also been around for several thousand years. There is a difference between novel and disputed. I replied:
The fact is that Hobby Lobby (et al.) want to restrict the health care benefits they offer to women, specifically. They claim this is because they have a religious belief that killing a zygote is murder -- a belief which is historically novel. Furthermore, as one of the amicus briefs points out, several of the medications they wish to disallow do *not*, in scientific fact, kill zygotes or prevent their implantation.
On the other hand, it is a long-established, traditional belief in many religions that women do not have the same rights of self-determination, self-defense, and bodily autonomy that men do. I do not doubt that many people today have a completely sincere and heart-felt religious belief in the need for women to be submissive, obedient, chaste (if not virginal), and self-sacrificing.
If Hobby Lobby can restrict women's access to certain contraceptives for religious reasons, is there any limit to the restrictions they could place on women's health care? Could they refuse to provide HPV vaccine, because they sincerely believe it encourages sinful promiscuity? Could they refuse to pay for treatments for cervical cancer, which is normally caused by HPV, which is transmitted through sexual promiscuity? Could they insist that contraceptives be only accessible to married women? Could they insist that they only be accessible to married women with their husbands' permission?
IANAL, but I don't see anything that makes Hobby Lobby's rejection of certain contraceptives legally different from any other kind of religiously-justified limitation on women's autonomy.
AFAIK, the idea that fully-human life is present from *conception* -- such that killing it is homicide, and causing miscarriage is manslaughter -- is purely 20th century. It is overwhelming the case that before the late 19th C, pregnancy only became "real" at quickening. Even when (post-quickening) abortion was severely punished, I don't believe that accidents or torts believed to cause miscarriage were prosecuted as manslaughter. As in traditional Jewish interpretation of Exodus 21:22, fetal loss is treated as a loss of property or a tort against the parents, not manslaughter against the fetus.In reply to a commenter who said The difference is that Hobby Lobby has no power to limit anyone's autonomy at all. The only power they wish to exercise is the power to choose what benefits they provide to their employees. They're not seeking to prevent anyone else from doing anything, they're just choosing to control what they themselves pay for. I replied in turn:
Among the evidence discussed in this paper, for instance, Morgon v. State, 256 S.W. 433 (Tenn. 1923), in which the father of an illegitimate child admitted to having beaten the mother until she gave birth prematurely. He claimed the infant was stillborn, and his conviction for second-degree murder for infanticide was over-turned when the court agreedthere was not enough evidence that the victim had been born alive to sustain a conviction. And in order to convict of murder, the court said, the infant must have "become a reasonable creature in being."In other words, less than 100 years ago in the US, there had to be a live birth before a death could be called any kind of murder.
Medical insurance is part of the employee's *compensation*. By choosing to self-insure, Hobby Lobby is choosing to directly control how their employees spend their compensation. They are seeking to prevent their employees spending their compensation on things they, the owners of Hobby Lobby, believe are wrong.I Am Not A Lawyer, but a number of you *are*. Tell me what you think.