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.