Hobby Lobby, IUDs, and the facts

IANAL, but considering that the last SCOTUS ruling on the ACA established the ACA was a tax, consistently maintaining the supremacy of the Commerce Clause, I was shocked SCOTUS is hearing this case.

Burwell v. Hobby Lobby Stores, Inc. - SCOTUSblog

Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.

While I hear all this buzz about “corporations are people”, I don’t think that’s really an interesting part of this case. I suspect the key aspect here will be the “substantially burden” part, and the limited circumstances of when abortions can actually happen through IUD’s even by Hobby Lobby’s definition (as birth control pills do not do so) of them pretty firmly demonstrates that at least in regards to abortion, the argument has very little merit. On the other hand, I don’t think anyone is arguing that these things are not contraceptives.

Going back to the fact that the ACA is a tax. It would be a very surprising precedent if the SCOTUS let any shred of the concept that your religious beliefs let you not pay any commerce based taxes. Corporations are very clearly not religious organizations, like a church. Commercial organizations pay their taxes, regardless of their religious beliefs. Otherwise, I think it’s about time more people start working for corporations with libertarian and pacifist beliefs. Why shouldn’t a pacifistic corporation reduce their tax burden by the percentage of the US budget that is used for war and defense?

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To save people the time: Richard W. Field summarizes the arguments George and Tollefsen attempt here.

The text contains no credible challenge to the usual definition of pregnancy as beginning at implantation-- let alone one based on scientific grounds.

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What I don’t get is why a company gets any say in coverage at all - in Germany your company pays part of the money towards your monthly payments, but they just go with whatever insurance company you’ve chosen. It seems weird that this can even be an issue, where a company can limit your coverage for ethical or other reasons.

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A definition either reflects the usage in the relevant community or it doesn’t. Current scientific usage is that “pregnancy” implies implantation. A person can argue to change the usage for philosophical or political reasons, which is what I assume George and Tollefsen must be doing. In other words, yes, it might be possible to change the definition of pregnancy. But, as others point out, that would mean it would be possible to have a pregnancy with no one pregnant.

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Dear “Szielins”,

Thanks for pointing me to that link. Your source (an Amazon review by someone I’ve never heard of) seems to actually contradict the very claim that you’re making. The link you provided states:

[George & Tollefsen’s] first aim is to establish on the basis of scientific evidence that the zygote is a member of the human species. I will not quarrel with the conclusion that a zygote has a full compliment human chromosomes that has totipotency…

If zygotes are indeed members of the human species (that is, if zygotes are homo sapiens), then that is sufficient to establish as a scientific matter that pregnancy begins at conception. After all, it is scientifically established that a zygote exists prior to implantation - indeed, that a zygote comes into existence at the moment of fertilization. So if the zygote comes into existence at the moment of fertilization, and if zygotes are homo sapiens, then a homo sapien has come into existence at the moment of fertilization. And if a homo sapien has come into existence at the moment of fertilization, this entails that pregnancy has begun at the moment of fertilization (unless one wants to say that a homo sapien can come into existence without pregnancy; a claim like that strains credulity, to say the least).

Obviously whether that homo sapien possesses rights [i.e., whether that homo sapien is a “person”], is a separate question the authors address in a separate later chapter. But we need not settle fetal personhood in order to settle when pregnancy begins - and since George and Tollefsen argue (apparently successfully) that zygotes are members of the human species, then that provides great scientific insight into when pregnancy begins. Regardless I hope you find these reflections of some service and I hope you have a great afternoon too! :smile:

Yours Sincerely,
~Benjamin Keil

The issue is a bit more subtle than religious vs scientific determinations of when a human life begins. For the religion the issue is when does the human being acquire a soul. The Christian Bible implies that this occurs by the time the human is in the womb. That’s about all that can be known without further revelation. So, for safety’s sake it is assumed that the soul becomes attached to the human from its origin.

Some corporations do have proscirbed lifespans. This is determined by the terms of the charter issued by the creating government. A corporation can be put to death for failing to be able to pay its creditors.

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Not in any Bible I have read actually. There is indication that to cause a pregnant woman to abort after quickening is a sin as a quickened, but no mention of soul. The rest of the argument is hogwash as far as I am concerned and a strictly Greek problem (as in the Hippocratic oath, read it sometime), there is no mandate against termination.

After four live births, two miscarriages and a lifetime of thought, as a Christian who attends church regularly, I am of the opinion and have confidence in this thought, that we can not decide for any woman that she remain pregnant when she wishes not to be, even if she is almost due. Until delivery of a living child there is only her, no one else. To be moral we need to respect women. Arguing about when pregnancy begins is foolishness and not helpful.

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That does not follow. Pregnancy is the condition of being pregnant. Zygotes can and do form without women being anywhere nearby, as happens in the case of in vitro fertilization. This means zygotes form without anyone achieving the condition of being pregnant; ergo, zygote formation is not the beginning of pregnancy.

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This is the second time today I’ve opened up Boing Boing and wondered briefly why we’re discussing pogo sticks.

Well, it IS called BoingBoing.

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Dear “Szielins”,

You seem to assume that pregnancy requires someone’s being pregnant - and hence, that pregnancy cannot result if nobody is pregnant (I think another commentator made substantially the same point as well, but I don’t have time at the moment to track down who said what). It is indeed an implication of the “pregnancy begins at fertilization” view that a pregnancy can exist without a person being pregnant (since fertilization can occur outside a womb, as you rightly point out). But that implication doesn’t show that the view is wrong (especially since one man’s modus ponens is another man’s modus tollens). In other words, it’s perhaps a counter-intuitive implication, but that doesn’t make the view wrong.

And, for what it’s worth, the same counter-intuitive implication will hold for the opposing view when (not if) artificial uteruses are developed. After all, if “pregnancy begins at implantation”, and Scientists Of The Future :wink: develop an artificial uterus (an external artificial uterus capable of growing a fertilized zygote into a full-term baby), it will also then be the case then that a “pregnancy” exists without anyone’s being pregnant (since the fetus will reside not in someone’s body but in its artificial womb).

In short, it’s just a fun fact of our world that technology plays merry hob with our philosophical concepts (and I rather like it that way). :slight_smile: But, as I see it, both the “pregnancy begins at fertilization” and the “pregnancy begins at implantation” views can lead to the counter-intuitive result that a pregnancy is possible without anyone’s being pregnant.

I’ve enjoyed our conversation (I hope you have too?) and I’ll again wish you a good afternoon. :smile:

Yours Sincerely,
~Benjamin Keil

Edit to add: Le_FouDuRoi, below, points to some sources defining “pregnancy” in ways which cause me to amend my views. With regard to the dispute between the “pregnancy begins at conception” and “pregnancy begins at implantation” views, my inclination had been to say that an implication of both the former and the latter was that it was possible for pregnancy to occur without anybody’s being pregnant (via either test-tube fertilization or a hypothetical future artificial womb). Le_Fou’s sources (or some of them, anyways) suggest that it’s true (by definition) that pregnancy requires a female’s being pregnant and if so, then neither the test-tube fertilization nor the artificial womb scenarios would count as “pregnancies” (since neither scenario involves a female’s being pregnant). My inclination is to think that we (or perhaps just “I”) were confusing a necessary condition with a necessary and sufficient condition - it is a necessary condition of pregnancy that (fertilization or implantation) have occurred. But the occurrence of fertilization/implantation is not by itself a necessary and sufficient condition of pregnancy. Thanks, Le_Fou, for posting and prompting some of these thoughts! :smile:

Or put another way, Hobby Lobby is actually arguing that corporations aren’t people and are really just an alter ego of the owners. That is really, really radical and gives them the benefits of limited liability without one of the key restrictions.

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The author wrote:

“But the science — what we know about IUDs from evidence — suggests that the primary mechanism is to prevent fertilization, not to prevent implantation. So, in that way, Planned Parenthood is more correct than Hobby Lobby, no matter what deeply held religious beliefs the company’s owners may have.”

Yet either Hobby Lobby’s owners are correct in thinking that IUDs have the capacity to prevent implantation, or they are incorrect. If IUDs can in some circumstances prevent implantation - which this article seems to support being the case - then Hobby Lobby’s owners are correct, full stop. There’s no “partly correct” on this true/false proposition (in the same way that, as the old joke goes, there’s no “partly pregnant”). That the “primary mechanism” of IUDs may well be to prevent fertilization doesn’t make Hobby Lobby’s owners in any way less correct that IUDs have the capacity to prevent implantation.

If Planned Parenthood is simply arguing that the primary mechanism of IUDs is to prevent fertilization, I suspect it is chiefly an argument they are having with themselves, not with Hobby Lobby.

I doubt it was intended this way, but this article does nothing so much as vindicate the central factual understanding underlying Hobby Lobby’s owners’ objection to IUDs.

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Thing is, under the correct view that pregnancy begins at implantation, no such problem comes up in the first place. Nor does your hypothetical shed any light on the question. If we ever get around to building an artificial uterus that can carry a zygote from zygote to viable neonate, that doesn’t mean the artificial uterus or any human was ever pregnant at any point; it means we’ve built a machine can bring a zygote from zygote to viable neonate, full stop. It’s not even uncommon for animals to reproduce without a pregnancy or any member of the species ever being pregnant; for example, most fish reproduce via external fertilization.

In short, it’s just a fun fact of our world that technology plays merry hob with our philosophical concepts (and I rather like it that way).

“Pregnant” versus “not pregnant” is not an abstract or philosophical distinction. It is an actual distinction-- one with legal implications. Hence, this is the realm of science. Your philosophy is your business; if you want to believe that a pregnancy can exist without anyone’s being pregnant, that there can be sound in a perfect vacuum, or that pi equals three, it’s no skin off my nose. Public policy, however, is-- or at least should be-- reality-based. Here, the reality is that pregnancy begins at implantation.

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From a corporate law perspective, there is nothing radical about what Hobby Lobby and Conestoga Wood are arguing. One of the nation’s foremost scholarly authorities on the subject explains why in this article: http://bit.ly/Pha320

UPDATED: “redesigned” wrote:

One of the worst most biased takes I have read yet on the subject, really this is a political codpiece and full of biased wording and misleading statements. complete rubbish.

I encourage you to persuade the Virginia Law Review or another distinguished law journal to publish your thoughts in response to that article, then.

people with an agenda like to throw in the words ‘family-owned’ as if that makes one bit of difference, it does not.

It potentially does make a difference in this context, which is why legal authorities on both sides have had occasion to make a point of it. The reason is that there are certain potentially relevant doctrines of corporate law (e.g. some shareholder rights, private ordering, intra-shareholder fiduciary duties, certain aspects of veil piercing, etc.) that have different application to and implications for closely-held corporations, and a number of the relevant cases cited in the briefs and scholarship on the Hobby Lobby case have fact patterns and holdings that focus on family or other closely-held ownership structures.

Yes but personal rights don’t exempt one from federal laws, nor do they extend and override the same personal rights of all the employees.

I’m afraid whether the HHS Mandate (which for the sake of clarity is an administrative regulation, not an Act of Congress) actually creates valid personal rights in Hobby Lobby’s employees, and whether it indeed has legal force (at least as applied to the plaintiffs), are precisely among the questions under review by the Supreme Court. The Tenth Circuit found otherwise, you’ll recall.

And just how do you think RFRA or, for that matter, as-applied constitutional challenges, work if not to provide lawful exemptions to the enforcement of federal laws based on personal rights, where it is judicially determined that such enforcement would violate those personal rights?

FURTHER UPDATE (sorry, as a new user I’m constrained for the time being to reply through edits to existing posts):

Heckblazer wrote:

Yeah, and on the other side you have 40 corporate law professors writing an amicus brief for the ABA. Having read both I think the ABA has the better overall argument.

That brief wasn’t written for the ABA; the ABA is simply hosting copies of all the briefs in the case on its website. It’s the very brief that Bainbridge dismantles - to great effect, from my perspective as someone in the same field - in the law review article.

Let’s let P.Z. Myers, well-known evolutionary biologist, blogger, and athiest, take that argument on.

(Warning for the faint-hearted: Myers does not believe that civility should be maintained simply for the sake of maintaining civility.)

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Catholics don’t have the views they used to regarding when an embryo/fetus becomes inhabited by a soul. These days, it’s fertilization = soul, but it wasn’t always. Aquinas, for example, believed that quickening/movement was the indication that a soul had come into the body. Abortion before quickening was still frowned upon as taking the life of a potential human being, but it wasn’t so serious an infraction without the presence of the soul. And no, many Christians aren’t Catholic, but a large number of Protestant and Fundamentalist beliefs do have origins in the Catholic Church.

Most Christian churches w/Conservative politics have hierarchies that consist totally of men. These men declare that God should control reproduction, and therefore contraception and abortion should have no part in it. I’m sure it has nothing to do with the fact that pregnancy and birth are physically very stressful (and therefore can become a means of control or even punishment). Ensuring that women get/stay pregnant whether they want to or not, and making sure they bear most of the responsibility for child rearing decreases the opportunities they have to seek power in any hierarchy. Some women actively choose to spend most of their time raising their children, but I don’t think conservative churches are concerned about empowering women with a wide range of lifestyle choices.

It’s ironic that those who practice the rhythm method of contraception end up causing more fertilized eggs to die than those who use IUDs, yet those who are staunchly anti-IUD will say that IUDs kill “unborn children” even when not used as EC.

This isn’t about the money as far as Hobby Lobby is concerned. It’s about controlling people. IUDs, particularly copper ones, are much less expensive than paying for prenatal care, hospital birth, and health care for a child dependent. Copper IUDs last 10-12 years. They require no participation on the patient’s part other than continuing to avoid sexual behaviors that put them at high risk for infection and checking strings once a month. Failure rate is only 2.2% over 12 years. There’s no other method of contraception that is that foolproof, that cheap, that lasts for so long. And it’s fully reversible. That means engaging in recreational sex without becoming pregnant becomes much easier. Of course, that’s what the people who run Hobby Lobby hate.

When a country is a corporate-run oligarchy and the people who run those corporations truly believe a theocracy would be a great thing, this sort of case is inevitable.

For those interested in learning about the history of IUDs and what they used to look like, try An atlas of intrauterine contraception available for browsing and download here. The variety of IUD designs is astounding.

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Szielins, how is this not just a linguistic and semantic issue? There is no empirical basis for the view that “pregnancy” begins at any particular point; it’s just a definitional matter - and one that has been subject to different, often competing linguistic usages over time and in different places. Everyone can share the exact same in-depth scientific understanding of “reality” (i.e., in this case, the empirically verifiable process by which human beings reproduce and develop) without necessarily agreeing on the same linguistic usage of “pregnancy.” This dispute over the terminology of pregnancy strikes me as akin to disputes over biological taxonomic classification: the classifications may be useful for one purpose or another, but everyone realizes (or should realize) that phyla, orders, genera and so forth are merely semantic and conceptual categories overlaid on empirical reality, not part of that reality itself.

Moreover, the dispute over usage of “pregnancy” seems particularly pointless in the case of the Hobby Lobby litigation, since it relates principally only to another linguistic dispute over “abortion” and “abortifacient” - and even if both of those linguistic disputes were resolved as a definitional matter (i.e., all parties concerned adopted the same usages of those terms), it would not help resolve the litigation, because the real controversy underlying the litigation is not itself linguistic. It is a thing itself (the destruction of a human zygote, blastocyst, embryo, fetus or later-stage development by artificial means) - and not the name that one attaches to that thing - that Hobby Lobby’s owners find objectionable. Whether one calls it an “abortion”, or a “termination of a pregnancy”, or simply “apple pie”, semantic shifts don’t advance the argument one whit.

UPDATED to respond to one of Brodmann_10’s points: In fact, the principles that, when Aquinas applied them to his empirical understanding, led him to assume a later ensoulment, would (when applied to a modern empirical understanding) have led him to associate ensoulment with what we now understand as conception (fertilization). Aquinas believed that a ensoulment required the presence of some self-organizing matter that he assumed was not present early on because he had no way of knowing otherwise. So it would be more accurate to say that Aquinas understood ensoulment to occur at conception; he just didn’t know yet at what stage “conception” that sense actually occurred. I’d submit that the Catholic understanding of ensoulment hasn’t really changed since Aquinas’ time, but it is now applied to a more sophisticated biological understanding, as one would expect.

FURTHER UPDATED: Szielins wrote:

Because it’s a term of art from biology, brought up in the context of an argument about the law. In both the context of biology and in the context of the law, we can legitimately point at biology textbooks and the dictionary and say, ‘Pregnancy begins at conception’ is an incorrect statement, just as `Pregnancy begins when the man and the woman undress’ is incorrect, or ‘Pregnancy begins when the Moon passes between the Earth and the Sun’ is incorrect.’ A couple of savants somewhere explain why they don’t much care for the standard definitions of ‘pregnant’ and ‘pregnancy’ because Kant and natural law; that’s great, but it’s irrelevant to biologists, lawyers, and members of the general public interested in the underlying policy issues.

It’s worth bearing in mind a couple of things. “Pregnancy” is not solely a term of art from biology; it was first, and remains also, a term of general parlance (even though it’s referring to something that has to do with biology). You will find some general dictionary definitions of “pregnant” that are broader than the post-implantation-only view (for example, “having a baby or babies developing inside the body” (Merriam-Webster)). You’ll even find specialized dictionary definitions that do (for example, “Carrying developing offspring within the body” (Am. Heritage Stedman’s Medical Dictionary). In fact, the current Stedman’s Medical Dictionary defines “pregnancy” as " The condition of a woman or female mammal from conception until birth"; check Dictionary.com. It should come as no surprise that some words have more than one customarily accepted usage.

While trends in usage may take different directions over time as with any word in the language, it seems clear enough that one cannot deduce the (putative) incorrectness of “Pregnancy begins at conception” in anything like the way one can about “Pregnancy begins when the Moon passes between the Earth and the Sun”.

At any rate, I can’t see how the outcome of Hobby Lobby’s case depends in the slightest upon such things - they certainly don’t seem relevant under RFRA - so I wonder why anyone is getting hung up on it.

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One of the worst most biased takes I have read yet on the subject, really this is a political codpiece and full of biased wording and misleading statements. complete rubbish.

people with an agenda like to throw in the words “family-owned” as if that makes one bit of difference, it does not.

there is noting controversial about comprehensive coverage, which covers all aspects of reproductive care and health, again this is not a neutral legal review but rather a propaganda piece.

Yes but personal rights don’t exempt one from federal laws, nor do they extend and override the same personal rights of all the employees. This “doctrine” is not in line with corporate law and legal precedents, and is largely considered to be rubbish. The same people laugh at it most the time and pull it out of there arses when it suits them? not cool.

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