The Daily Caller

The Daily Caller

The questions not being asked in the Hobby Lobby and Conestoga Wood cases

Photo of Robin Fretwell Wilson
Robin Fretwell Wilson
Professor, University of Illinois College of Law

Today the Supreme Court hears challenges by two family-owned companies — Hobby Lobby and Conestoga Woods — to the Obama administration’s contraceptive coverage mandate. The thrust of oral argument: Do companies employing hundreds or thousands of employees receive protection under the Constitution and the Religious Freedom Restoration Act when a government mandate forces owners to violate their religious beliefs?

Ironically, not a word will be said about the religious objection itself.

The companies contend the mandate forces them to pay for drugs and devices, like Plan B and ella, that “cause the demise of an already-conceived but not-yet-attached human embryo” by preventing it from implanting. For them, facilitating “abortion” is a “sin against God,” making the owners “accountable.”

From the get-go, the Obama administration told the public something very different: “Abortifacient drugs are not included.”

But in court, the administration concedes that contested drugs may “prevent implantation.” They had no choice. Objectors ripped their concerns from the drugs’ labels and FDA-prepared contraception guides, all of which indicate that the drugs can act after fertilization.

Yet, the Court will not “wade into scientific waters” because there is “no material dispute” about how the drugs work.

Sidelining a burning question does not make it go away. The truth matters greatly to ordinary people, not just religious objectors.

In 2005, 53 percent of Utah and Oklahoma women said they would not use drugs that act after fertilization but before implantation. In 2008, Southeastern women expressed deep discomfort with post-fertilization drugs — 47 percent believed “pregnancy begins with fertilization.” Religious beliefs were irrelevant; modest incomes mattered. Physicians recognize that women want to know if a drug works “after fertilization, regardless of their religiosity.”

How it is possible that the administration can both say that contested drugs are not abortifacients but may act after fertilization?

The administration measures pregnancy from completed implantation, objectors measure “life” from fertilization, days earlier. For both, a drug working after the critical point is an abortifacient — but each side uses a different point.

Mandate supporters contend that pregnancy is universally measured from “implantation.” Opponents counter that it is “universally accepted” that human life “comes into existence at fertilization.”

In truth, no unitary medical view exists. Some authorities measure pregnancy from fertilization; others, implantation. 28 percent of US Ob/Gyns say pregnancy begins at implantation, 57 percent say “conception.”

For women who care, separating fact from fiction is tough. Both sides lump all the drugs together, glossing over important differences.