Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, March 26, 2013

Another Dems for Life Brief on the Abortifacient Aspect of the HHS Mandate

As I mentioned a while back, Democrats for Life and former Congressman Bart Stupak are filing amicus briefs in various lawsuits against the HHS mandate.  The briefs, on which I am working, argue that the nation's distinctively strong tradition of protecting conscientious objections to facilitating abortions should extend to the objections to mandated insurance coverage of Ella and Plan B.  The latest brief (here) is in Conestoga Wood Specialities v. Sebelius (Third Circuit), a case brought by devout Mennonites who run a business and object to abortion though not to contraception in general.  The brief argues that the district court's denial of a preliminary injunction is

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 have extended 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.


Berg, Thomas | Permalink


                                                        Feed You can follow this conversation by subscribing to the comment feed for this post.

It's my understanding that even some pro-lifers have concluded that Plan B is not an "abortifacient." In making a claim for an exemption on religious grounds in a case like this, to what extent is the evidence for the claim relevant? If a religious organization providing insurance were to seek an exemption from providing antibiotics on the grounds that they are abortifacients, would the fact that nobody but the religious group in question actually believed them to be abortifacients be a consideration? Or would challenging a sincere (but scientifically unsupported) belief by the religious group be considered an infringement of the group's right to define its own beliefs?

Posted by: David Nickol | Mar 26, 2013 9:09:00 AM

Thanks for your work on these briefs, Tom!

Posted by: Matt Bowman | Mar 28, 2013 5:37:17 PM

"not to contraception in general"

The logic however doesn't require such limitations. If you are going to rest on "conscience," any number of health related decisions is going to clash with religious beliefs. Paying people also is a means of "facilitating abortion."

The lines here are arbitrary and ultimately deny workers the right to determine how to spend benefits obtained by their own labor as their own conscience demands. If religious groups want to avoid this sort of thing, they can ensure only people of their own faith are in the business. Hiring others in this context stops them from forcing their beliefs onto others. I continue to find this stance ironic, if true free exercise of religion is the value.

Posted by: Joe | Apr 5, 2013 5:50:48 PM