Burwell v. Hobby Lobby: A thin margin indeed

The recent Supreme Court decision, Burwell v. Hobby Lobby, has been hailed as a victory for religious rights, but in the Supreme Court’s majority opinion there are ominous signs for bioethics.

First, no commentator so far has mentioned that the Supreme Court decision implies that the only legally viable objection to underwriting abortifacient interventions must be religious in nature. The thin margin of decision by a majority that repeatedly referred to the Religious Freedom Restoration Act indicates that anything less compelling than a “sincere Christian belief” would be insufficiently persuasive. The belief at issue was that life begins at conception.

Thus there seems to be no legal room for a secular argument against funding abortifacients in Hobby Lobby’s situation. But what if someone held a purely scientific belief that life begins at conception? Would we not hope that such a person, who came to such a conclusion based on scientific evidence, would then have deeply held moral views about abortifacients? And if so, shouldn’t there be any an equal legal respect for such views?

In fact, what is specifically “Christian” is not the belief that life begins at conception. That is a scientific fact; what the Christian then does is conclude that there is moral consequence to the fact. He then has conviction to act based on this belief.

There are serious concerns here—one is that these events indicate that in our society those without religious beliefs are failing to demonstrate the moral conviction to act on the scientific fact that life begins at conception. The second is that should such secular moral conviction occur, the legal system would fail to grant legal standing to it. The Supreme Court majority made no attempt to accommodate a nonreligious belief; certainly the minority would not do so either.

A third concern is that there is ample evidence that many who support abortifacients deny the scientific facts altogether. They create arguments that what is being destroyed by abortion and abortifacients is not yet actually human life. In these instances they reveal that while they retain a moral sense that ending human life is wrong, they decide to override it with fanciful and convoluted cogitations in order to justify other desires. They simply lack sufficient moral conviction that respecting human life is paramount; both truth and the embryonic human become expendable.

The outcome of Burwell v. Hobby Lobby certainly could have been worse. But as it is it bodes poorly for the state of modern bioethics, for it is shows that there is no active nor legally viable line of defense against assaults on nascent human life than a Christian community increasingly marginalized by its own government.

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Tom GariganJon Holmlund Recent comment authors
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Jon Holmlund
Jon Holmlund

I’m not so sure the results are necessarily so thin. My understanding is a decision was made to litigate this case based on RFRA–and the SCOTUS decision accordingly focused on the proper application of RFRA. It does not necessarily follow that other, “secular” challenges could not also succeed in the future.

Note Robert Veatch’s comment in response to a post on the Hastings Center Bioethis Forum–it seems to me he is, in the end, making an argument for broader insurance benefit flexibility under the ACA, something that seems to me inevitable: http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=6970&blogid=140&utm_source=Copy+of+News+in+Context&utm_campaign=NewsinContext20140529&utm_medium=email

Tom Garigan
Tom Garigan

Jon Holmlund wisely cautions against predicting the results of cases not yet brought to the Supreme Court. But would not the arguments for rights of conscience broadly construed within a secular challenge also apply for an argument based on specific grounds such as religion? If so, such concepts of rights of conscience in general did not convince four judges. Remove the linchpin of religious freedom, and what remaining basis for rights of conscience would be respected at all? I suspect that a secular challenge was not mounted in the Hobby Lobby case due to pessimism about its chances for success.… Read more »