Abortion and the HHS Mandate

by Ramesh Ponnuru

During the oral argument Justice Kennedy asked whether, on the government’s theory of the case, it would be permissible to force companies to cover abortion in their insurance policies for their employees. I think the answer to that question is clearly yes. And as Matthew Franck points out, the question is not a hypothetical one: The case itself concerns a company that objects to covering drugs that may cause abortion. Three issues have been brought up on this point. 1) Some defenders of the HHS mandate dispute that preventing the implantation of a human embryo should be considered equivalent to inducing an abortion. 2) Some of them dispute that the drugs in question prevent implantation. 3) Some of them say that company owners have no complicity in what employees do with their insurance policies and thus face no burden from covering these drugs, regardless of their effects and how those effects should be characterized.

For the purpose of the Religious Freedom Restoration Act, it is a sufficient answer to these points that the owners sincerely believe that offering coverage for the disputed drugs would violate their consciences. They sincerely believe that stopping implantation is equivalent to abortion, that the drugs pose an unacceptable risk of stopping implantation, and that they would be unacceptably complicit in what they consider to be an evil if they offered the coverage. To judge the RFRA claim, judges must decide whether those beliefs justify an exemption from a legal requirement without evaluating the merits of those beliefs.

Here I want to make the case that these beliefs, in addition to being protected, have a stronger basis than the critics allow. Ed Whelan pointed out back in December that even some of the pro-mandate briefs acknowledge that the drugs in question may sometimes act by preventing implantation. Here’s how mandate defender Marty Lederman frames the question of whether that matters:

U.S. law has adopted the standard, consensus understanding in the scientific and medical communities that pregnancies begin—and thus that “abortions” of pregnancies can occur only after—a fertilized egg is implanted in the uterine wall.

The individual plaintiffs in these cases, by contrast, believe that human life begins when an egg and sperm unite, even before the embryo is implanted in the uterine wall, and that it is therefore a termination of human life to prevent the embryo’s implantation. . . .

[A]ccording to the FDA, the four contraceptive methods named in the Hobby Lobby complaint — two IUDs, ella and Plan B – might prevent implantation of an embryo in a small number of cases.  And if and when they have such an effect, then in plaintiffs’ view—even if not in the view of the law—such cases would result in termination of a human life.

Much of this discussion (as well as Lederman’s discussion here) seems to me to confuse a semantic issue with a substantive one. Pro-lifers object to “ending a pregnancy” and “abortion” because they entail causing the death of a living human organism, which is indisputably what the human embryo is pre-implantation. The “view” that preventing implantation causes the end of a human life in that sense is simply a fact. Of course the law does not define the human embryo as “a human life” in the sense of a person with rights, but of course it does not so define unborn children long past implantation.
Almost nobody, that is, believes that implantation is a morally significant event. (And that’s true whatever its legal significance, which also seems to me to be slight.) Pro-choicers do not believe that killing that human organism becomes unacceptable after implantation, and pro-lifers do not believe it is acceptable before. Even if you take the view that causing the death of a human embryo by preventing it from being able to implant should not be described as an “abortion,” it does not change the fact that the principle underlying objections to abortion applies to this way of bringing about death too.
Update: A correspondent emails me a link to a survey that found that 57 percent of responding obstetrician-gynecologists believe pregnancy begins at conception while 28 percent believe it begins at implantation. In this survey, at least, a majority did not subscribe to the alleged “consensus understanding in the scientific and medical communities.” The correspondent adds his own terminological point: “No one you know who has ever been trying to have children has said the sentence ‘We’re trying to implant.’ People in that circumstance are trying to ‘conceive,’ because we all know that conception is when new people start.”