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, January 28, 2014

Democrats for Life and Bart Stupak Amicus Brief in HHS-Mandate Cases

The Democrats for Life of America and former Rep. Bart Stupak have filed an amicus brief (PDF file, link, press release) in the Supreme Court in the Hobby Lobby and Conestoga cases (as we did in the courts of appeals).  Our brief focuses on the fact that the individuals and businesses here object to drugs and devices (emergency contraceptives and IUDs) that they colorably fear may act to cause abortions by terminating new embryos before implantation in the uterus.  From their distinctive perspective as supporters of the overall health-care law, the amici make several points (here from the summary of argument):

I. . . . Conscientious objections to abortion carry especially strong weight in American law because they fall within our tradition of protecting objectors from participating in actions that the objectors believe unjustly take human life—actions that include assisted suicide, abortion, capital punishment, and war. For this reason, although health-care conscience laws cover religious and moral objections to several procedures, protections for conscientious objection to abortion are particularly strong.   

More specifically, laws protecting conscience rights for those objecting to abortion are not limited to individuals or to non-profit or religious organizations. Instead, the right not to facilitate or support abortions typically 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. . . .

II. Although the government has made statements that terminating a fertilized embryo before it implants in the uterus is not an abortion, the relevant matter for the claim of conscience under RFRA [the Religious Freedom Restoration Act] and the First Amendment’s Free Exercise Clause is plaintiffs’ belief that a distinct human life begins at fertilization. It is no salve to plaintiffs’ conscience to be told that the government defines abortion differently. Furthermore, plaintiffs have a colorable cause for concern that the drugs and devices to which they object may act to terminate embryos.. . .

III. . . . 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. Therefore, this Court should find that the mandate substantially burdens plaintiffs by requiring them to cover methods they fear may act to terminate an embryo after fertilization.

Some of you may also be interested in this blog post of mine on Democrats for Life's interventions in pro-life litigation, interventions aimed distinctively at "ensuring that the law protects whole-life principles and the conscience of pro-life Americans."


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