Amicus Brief in HHS Mandate Case: Former Rep. Bart Stupak and Democrats for Life on Abortifacients

This was a busy week for me.  The same day I joined as of counsel on an amicus brief arguing for protecting same-sex marriage and religious liberty, I joined in writing and filing a brief in one of the HHS mandate cases brought by a for-profit business, Newland v. Sebelius (now in the court of appeals for the Tenth Circuit).  The amici are former Congressman Bart Stupak and the Democrats for Life of America, and the burden of the brief is to focus attention on the plaintiffs' claim against being forced to cover medicines that are, or that may colorably be thought to be, abortifacients.  Here is a significant portion of the Summary of Argument:

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I.  Multiple federal and state laws show that our nation’s tradition of protecting conscience, including religious conscience, is at its strongest and broadest for individuals and organizations that object to facilitating abortions.  Plaintiffs’ complaint alleges that the mandate, as applied to emergency contraceptives that may cause abortions, violates several such provisions, including in the Affordable Care Act itself.  But the widespread pattern of conscience protection for objectors to abortion also supports plaintiffs’ claim under the Religious Freedom Restoration Act (“RFRA”), which served as the basis for the preliminary injunction.  Three conclusions can be drawn from this pattern of conscience protection.  First, although health-care conscience laws cover religious and moral objections to several procedures, objections to abortion carry especially strong weight in American law.  They fall within our tradition of protecting objectors from participating in actions, including assisted suicide, abortion, capital punishment, and war, that the objectors believe unjustly take human life.  Second, the right not to facilitate or support abortions protects a wide range of objectors, regularly extending to individuals engaged in for-profit commerce and to for-profit businesses.  Finally, our tradition protects objectors to abortion far beyond the case of direct involvement in the performance of the abortion.

Plaintiffs’ objection to covering emergency contraception falls within the tradition of broadly protecting conscientious objections to facilitating abortions.  Although the government claims that terminating an embryo before it implants in the uterus is not an abortion, the relevant matter for the claim of conscience under RFRA is plaintiffs’ belief that a distinct human life begins at fertilization: it is no salve to their conscience to be told that the government defines abortion differently.  There is a colorable reason to believe that emergency contraceptives may act to terminate embryos.  And even applying the government’s definition, there is evidence that Ella may terminate embryos after implantation.

II.  The longstanding, pervasive tradition of broadly accommodating conscientious objections to facilitating abortions has two implications for this case.  First, it supports plaintiffs’ argument that the contraception mandate “substantially burdens” their religious exercise, triggering the government’s duty under RFRA to demonstrate that this burden serves a “compelling governmental interest” and does so by the “least restrictive means.”  42 U.S.C. § 2000bb-1(a), (b).  The mandate requires plaintiffs to provide insurance coverage for procedures they believe are grave moral evils.  The government’s attempts to deny this burden must be rejected.  The government says that for-profit corporations and their owner-operators cannot engage in religious exercise; it also says that an employer suffers only an insubstantial, “attenuated” burden from being forced to cover methods and procedures that employees choose for themselves whether or not to use.  Both arguments are irreconcilable with our tradition of protecting health-care-related conscience in the commercial sphere—in particular the strong tradition, under federal and state laws, of protecting objections to abortion.  Protections for objections to facilitating abortion extend to multiple categories of for-profit entities and individuals engaged in commerce, and to many kinds of indirect facilitation, including mandatory coverage of abortion in insurance plans.  When impositions are repeatedly prohibited under various conscience provisions, they cannot be dismissed as “insubstantial” burdens under RFRA.