Complicity and Contraception: Rethinking Hobby Lobby’s Claim of ‘Substantial Burden on the Exercise of Religion’
Within the next month, the United States Supreme Court will decide whether for-profit corporations shall receive an exemption from providing certain types of contraceptives that are otherwise mandated for healthcare coverage by federal law to employees on the basis of the religious objections of the corporations’ owners. The two cases considered in tandem by the Supreme Court, Sebelius v Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corporation v Sebelius (Hobby Lobby from here on out), feature a Christian-owned arts and crafts chain and a Mennonite Christian-owned furniture manufacturer, the owners of which object to four specific forms of birth control that they claim cause abortions.
In making their argument for an exemption, the claimants rely mainly on the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993. The RFRA states, “Government shall not substantially burden a person’s exercise of religion…” unless “that application of the burden to the person – 1) is furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.” This sets up three tests for judging the permissibility of a government act: the substantial burden test, the compelling interest test, and the least restrictive means test. For the claimants in Hobby Lobby to be successful under the RFRA, the Supreme Court would need to decide first that the government’s ‘contraception mandate’ is indeed a ‘substantial burden’ and second that the provision of contraception is both a compelling government interest and that employer based health insurance is the least restrictive method for securing that interest.
Scholars and journalists have taken various approaches in responding to the range of questions related to these three tests. However, I argue here that Hobby Lobby’s exemption claim can be denied without diving into this spectrum by showing that it fails to meet the first test: the government does not place a substantial burden on the exercise of religion by Hobby Lobby and Conestoga Wood in its ‘contraception mandate.’ Continue reading
How the Danziger Story Advances the Abortion Debate in America: Actual Futures, Moral Status, and Common Ground
It has become commonplace in recent years to note that the ‘abortion debate’ in America has become entrenched. Indeed, there seem to be few issues in contemporary politics that elicit less common ground than the abortion debate finds in its stalwartly pro-choice and pro-life opponents. It is just as common, if not more so, these days to speak of the ‘attack on Roe v. Wade’ or ‘the attack on women’s rights,’ particularly in light of recent findings that more abortion restrictions were enacted between 2011 and 2013 in the U.S. than in the entire previous decade. Now more than ever, especially for the pro-choice movement, it is necessary to conceptualize novel approaches to the questions of the beginning, end, and quality of life that sit at the heart of the abortion debate. Here I examine a recent case and how it has the potential to advance this debate. Continue reading
In the U.K., a Labour plan has recently been in the news and stimulating some interesting debate – mainly about the over-regulation of smoking.
As can be seen on the BBC news website, Labour peers have “tabled an amendment to the Children and Families Bill detailing their proposal for England, which they said was about “protecting children”. Lord Hunt, who supports the motion, has stated
“Some Lords will argue a car is a private space and that we should not legislate for what happens within such a space. But there are more important principles than that… For one for me is the need for child protection. Unlike most adults, children lack the freedom to decide when and how to travel, they lack the authority most adults have to ask people not to smoke in their company. And in those circumstances I think it is right for Parliament to step in to protect children.” Continue reading
In a particularly eye-catching pull quote in the November issue of The Atlantic, journalist and scholar Robert Wright claims, “The world’s gravest conflicts are not over ethical principles or disputed values but over disputed facts.”
The essay, called “Why We Fight – And Can We Stop?” in the print version and “Why Can’t We All Just Get Along? The Uncertain Biological Basis of Morality” in the online version, reviews new research by psychologists Joshua Greene and Paul Bloom on the biological foundations of our moral impulses. Focusing mainly on Greene’s newest book, Moral Tribes: Emotion, Reason, and the Gap Between Us and Them, Wright details Greene’s proposed solution to the rampant group conflict we see both domestically and internationally. Suggesting that we are evolutionarily wired to cooperate or ‘get along’ with members of groups to which we belong, Greene identifies the key cause of fighting as different groups’ “incompatible visions of what a moral society should be.” And his answer is to strive for a ‘metamorality’ – a universally shared moral perspective (he suggests utilitarianism) that would create a global in-group thus facilitating cooperation.
There has been a recent storm over the DPP’s decision not to prosecute two doctors in relation to their referral of two women for abortion. The cases were widely represented as cases of abortion on grounds of gender. They came to light in the course of an undercover investigation by the Daily Telegraph of practice in English abortion clinics ( see also here and here).
The DPP has published detailed reasons for his decision. They are well worth reading.
An abortion is only lawful if two medical practitioners are of the opinion, held in good faith, that one of the lawful grounds for abortion is made out. One of the grounds (overwhelmingly the commonest, and the one said to be relevant in both of the cases considered by the DPP), is that ‘the pregnancy has not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family.’: Abortion Act 1967, s. 1(1)(a).
The Act does not say anywhere that the gender of the fetus is a relevant criterion. But it plainly could be. Take two examples: Continue reading
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Abortion is often in the news. Yesterday, The Atlantic Wire reported a poll of Americans’ moral views, which found just under half of Americans believe abortion is morally wrong. Today, The Sun is running an article on the devastating effects on women of having abortions. And, a couple of weeks ago, the law in Ireland was changed to allow abortion under certain circumstances.
Whether (and under what circumstances) abortion is ethical, and whether (and under what circumstances) it should be permitted by law, are two of the most well known and fiercely debated issues of our age. I do not wish to engage with them here. Instead, I will argue as follows:
- Abortions cause suffering, and neither permitting them nor banning them is likely to reduce this suffering to an acceptable level.
- The best way of reducing the suffering caused by abortion is to reduce unwanted pregnancies.
- Current attempts to reduce unwanted pregnancies in the UK do not work well enough.
- Viewing unwanted pregnancy as more like a medical disorder and less like a social problem is likely to enable more effective measures to address it.
I then propose such a measure, and defend it against some possible objections.
Wednesday the 6th of February saw two of the most prominent ethicists of our time engage in a (friendly) debate on two crucial, related philosophical questions: the value of life and the badness of death. (You can listen to the podcast of the debate here.) In a room filled to capacity at the Oxford Philosophy Faculty, Jeff McMahan, Professor of Philosophy at Rutgers University, and John Broome, White’s Professor of Moral Philosophy at the University of Oxford, discussed their respective views on these questions, explaining in turn where they agreed and disagreed with each other and why, using rigorous, sophisticated philosophical arguments.
Whatever your view of abortion, there are too many abortions, and too many of them are too late. Even abortion’s fiercest advocates don’t pretend that it’s a Good Thing – just the lesser of two evils.
In 2010 there were 189,574 abortions in England and Wales – an 8% increase in a decade. The tightly policed regime envisaged in 1967, when the Act became law, hasn’t existed for ages, if indeed it ever did. There is abortion on demand, whatever the statute book says.
1967 was a long time ago. There have been many medical advances and societal changes since then. It’s time to take stock of the Act.
That’s what a recently announced cross-party commission, to be chaired by Fiona Bruce MP, will do.
It will focus, rightly, on two issues: medical advances and attitudes to discrimination. Continue reading
By Lachlan de Crespigny and Julian Savulescu
An emergency centre doctor working in Germany has claimed 2 nearby catholic hospitals refused to accept a rape victim who needed treatment, in case she was pregnant . This was allegedly in line with their ethics committee’s policy to refuse to examine sexual assault victims in an effort to avoid future treatments such as the morning after pill coming into conflict with the hospital’s catholic ethos. The hospitals claim this was a misunderstanding and await an internal inquiry.
The Catholic Church does not support abortion and includes the morning after pill as an abortifacient. It is in violation of Catholic (ethical) standards. The doctor making the claims says that Cologne’s Cardinal Meisner had been consulted.
The Catholic Church insists life must be protected with the utmost care from the moment of conception. From the first moment of his or her existence, a human being must be recognized as having the rights of a person. But in this case, they did not only deny the rape victim access to legal contraceptives, they refused to treat or examine her in any way for any of the resulting injuries of the rape. They did not treat her in her hour of need as a person who deserved the utmost care.
It will be interesting to watch the reception of a recent Court of Protection case, as yet unreported, in which a woman with profound learning difficulties was found to have capacity to decide not to terminate her pregnancy.
As so often, the case decided nothing new. But it is a timely reminder of the trite but often overlooked principle that capacity is not an all or nothing thing. The question: ‘Does she have capacity?’ is always dangerously incomplete. The correct question is always ‘Does she have capacity to decide X?’
There was no doubt that she did not have capacity to manage many aspects of her affairs. She was in the bottom 1% of the population so far as intellectual function was concerned. Deputies were appropriately appointed. But, so far as the continuation of her pregnancy was concerned, so what?
It was decided as a matter of fact that she had capacity to decide whether or not to continue with, or to terminate, the pregnancy. And that meant that the Court of Protection had no jurisdiction to decide the matter. No best interests determination could lawfully be made. Continue reading