"Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Prof. Colb"

[A reader, Christian E. O'Connell, sent in the following, and asked if I would be willing to post it at MOJ.  I am happy to do so.]

Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Professor Colb

Christian E. O’Connell [*]

 

In her recent essay at Justia’s Verdict, titled “What Counts as an Abortion, and Does It Matter?,” Cornell law professor Sherry Colb waxes philosophical about the normative and empirical claims she perceives to be at work in Burwell v. Hobby Lobby Stores, Inc., the Religious Freedom Restoration Act (“RFRA”) controversy recently decided by the U.S. Supreme Court.

Professor Colb laments as “underdeveloped” the factual issues raised by the Hobby Lobby plaintiffs’ claims about the so-called “morning-after” pills and intra-uterine devices to which they object, while acknowledging strong arguments in favor of judicial deference to such claims.  (I’ll refer here to the RFRA claimants in the consolidated litigation as, collectively, the “plaintiffs.”)  Yet, Colb argues, the plaintiffs’ premise that human life begins at conception suggests a standard for assessing whether participation in a given birth control method violates a RFRA claimant’s religious commitments.  She submits that, by that standard—even if the embryo’s humanity and the drug’s implantation-inhibiting potential are conceded—it’s doubtful whether the morning-after pill “is an abortifacient that literally kills embryonic life,” and accordingly whether there is any corresponding violation of religious beliefs.

Nevertheless, the formal distinctions on which Colb’s thesis relies are suspect in this context, and it’s far from clear in any event that they support her conclusion.

I’ll mention at the outset one incidental quarrel with Colb, even though it’s not fundamental to the argument, because it involves a misconception that clouds the discourse surrounding Hobby Lobby.  Colb is undoubtedly right to characterize as semantic the dispute over whether pregnancy begins upon the creation of a human embryo at fertilization or only upon its implantation in the mother’s uterus, and thus whether the destruction of an embryo prior to implantation can properly constitute an abortion.  Yet this “definitional divide” is not, contrary to Colb’s assumption, “between a pro-life individual’s thinking and the standard medical thinking.”  A study published in 2012 in the American Journal of Obstetrics & Gynecology suggested that 57% of practicing U.S. Ob/Gyn physicians believe that pregnancy commences at fertilization, only 28% believe it commences at embryonic implantation, and 16% aren’t sure to which view they subscribe.  One of the strongest predictors of the response was found to be a physician’s moral attitude toward abortion.  The observed divide thus exists not between pro-life thinking and standard medical thinking, but between pro-life and pro-choice thinking, and if anything the former arguably possesses the better claim to represent the prevailing view among medical professionals on this question.

A Lesson from Learned Hand

Although Colb ultimately pursues her moral argument by assuming the truth of the Hobby Lobby plaintiffs’ “empirically implausible contentions,” she does so with conspicuous skepticism.  It’s worth noting, though, that the central factual contention underlying the plaintiffs’ RFRA challenge has often been misunderstood (or at least mischaracterized) by their opponents.  For this reason, I think the nature of that claim bears examination here, and to this end, it’s useful to consider its function within the broader moral calculation implied by the plaintiffs’ argument.

As I see it, that calculation—to evoke a jurisprudential parallel—is in certain respects reminiscent of Judge Learned Hand’s famous balancing test from the 1947 Second Circuit decision in United States v. Carroll Towing Co.  As former law students will likely recall, in that case, the defendant’s negligence resulted in a barge breaking loose from its moorings; its hull was punctured in a subsequent collision, causing the barge to spill its cargo and sink.  The defendant argued that if the barge’s owner had not carelessly left her unattended, barge and cargo could readily have been saved.  In deciding whether the owner should be held partly responsible for the loss, Judge Hand articulated a standard of duty that has come to bear his name:

Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.  Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B <PL.

To be sure, I don’t mean to imply that the cost-benefit examination in Carroll Towing furnishes an applicable legal standard for Hobby Lobby, that the facts of Hobby Lobby lend themselves to a negligence analysis, or any such thing.  Yet I think the connection between duty on one hand, and variables of gravity and probability on the other, posited by the Hand Rule can help clarify the factual and moral claims (and the relation among them) in Hobby Lobby.

To illustrate, let’s transpose some elements from Judge Hand’s equation to the assessment of religious or moral (rather than legal) duties presumed to take place in the consciences of the Hobby Lobby plaintiffs.  The plaintiffs attribute an extremely high value to L(ife, or rather the degree of harm represented by the embryo’s loss of it).  The proper value of L in this context is certainly subject to dispute, but it is a moral dispute.  The pertinent factual dispute arises from competing assessments of P, which may be understood in this case as the probability of some post-fertilization effect of a drug or device bringing about an embryo’s death.

The empirical claim often imputed, expressly or impliedly, to the Hobby Lobby plaintiffs by their critics is that P = 1, or at least reflects some elevated cumulative probability.  Yet no such certain claim emerges from the plaintiffs’ briefs; indeed, they appear not to have ventured any precise position on the value of P.  We can see, though, that particularly for very large values of L, the calculus suggests that even a very low estimation of P (in other words, a remote likelihood of a fatal post-fertilization effect) can potentially trigger a moral duty of avoidance.  We may further note that the only value of P for which the duty cannot in principle be triggered is zero; that is the only empirical state of affairs strictly inconsistent with the plaintiffs’ moral reasoning if we understand it in this fashion.

Accordingly, although I concur with Colb that courts have good reason to defer to certain inaccurate factual claims a RFRA claimant may advance, I’m doubtful that if the law were otherwise anyone ought to expect a different outcome in Hobby Lobby.  The primary sources cited in the brief of the medical amici supporting the government in Hobby Lobby, for example, are tempered by equivocal qualifications and admissions of varying degrees of incertitude.  A fair reading of those sources inevitably yields the conclusion that anyone claiming that P is literally zero has gone unreasonably far beyond not only what the research supports, but in all likelihood beyond the practical upper limits of what it could ever support—particularly given the logistical, legal and ethical confines of experimental research in this area.  Likewise, a person assigning any positive value to P faces a challenge in demonstrating that any factual claim upon which the plaintiffs’ argument relies is thereby contradicted.  A person claiming, on the other hand, that P is simply too small to merit consideration is making a value assertion rather than a factual one.

Only the consciences of the Hobby Lobby plaintiffs can assess how much uncertainty as to the outcome of participating in certain birth control methods their calculus of religious duty can tolerate.  Once the factual claim entailed by the plaintiffs’ argument is understood in the way suggested above, however, the formidable difficulties involved in attacking the plaintiffs’ position on empirical grounds come into focus.

When Is an Abortion Not an Abortion?

Colb pursues an alternative tack aimed at showing that, even if we assign (as I think we must) some positive value to P, and perhaps even if we hypothesize that P = 1, the Hobby Lobby plaintiffs’ claim of a violation of religious commitments against abortion may be questioned.  To this end, she evokes moral distinctions between “directly killing” an embryo (or anyone else) and allowing one to die.  Colb endeavors to fit embryo death induced by the challenged birth control methods into the latter box, at least where the mechanism is assumed to be interference with endometrial receptivity.

Inspired by Judith Jarvis Thomson’s notorious hypothetical violinist, Colb grants for the sake of argument the embryo’s personhood and offers the following analogy:

One could view the disrupted thickening of the uterine lining to make it less hospitable to implantation as akin to shutting the door to one’s house when someone outside is running toward the door seeking refuge from dangerously low temperatures outside.  The person will die of exposure if not admitted into the house, but refusing to admit the freezing man is not, by most assessments, the moral equivalent of shooting the man dead with a gun or even of taking a man who is already warming up inside one’s home and throwing him out into the cold.

Be that as it may, I suspect that, by most assessments, the distinction is materially eroded if one supposes (1) that the person the woman is shutting out is her own infant, (2) that the mother’s own actions have contributed to placing the child in a position where it is not only obliged to seek refuge or else freeze, but is also cut off from other rescue, and (3) that she has barred the door with the specific will that anyone on the other side should perish.  Moreover, as John Finnis once observed, if we must entertain “the wretched analogy of house ownership,” we might at least consider that a mother and her unborn child share the same house “both by the same sort of title, viz., that this is the way they happened to come into being.”  In this light, the scene takes on shades of ancient Roman expositio, with the added twist that in Colb’s analogy the mother is also the weather.

Nor is it clear why certain of these concerns shouldn’t also apply to what Colb suggests may be a more apt, if less colorful, analogy; namely, “the plight of an embryo that has been produced through in vitro fertilization and is now ready for implantation,” but whose mother elects at the last minute to forgo the procedure.  Colb thinks that this comparison illustrates a difficulty with arguing that embryo deaths from post-fertilization but pre-implantation birth control mechanisms qualify as abortions.  Yet her argument for this reads in the main as an appeal to personal incredulity, and it may be objected at the very least that society has no settled moral intuitions here.  Many people, after all, would consider the in vitro fertilization scenario to involve an abortion or its equivalent.

Regardless, it’s uncertain whether Colb’s preoccupation with distinguishing direct violence from “failure to rescue” actually advances her goal of undermining the Hobby Lobby plaintiffs’ argument.  After all, their fundamental objection to becoming (as they put it in their first brief before the Supreme Court) “morally complicit in ‘the death of [an] embryo’” doesn’t exclude a duty to avoid the scenarios that Colb characterizes as merely letting one die.  Moreover, Colb’s intimation that such a scenario shouldn’t “qualify as an abortion” signals an assumption for which there are no obvious grounds; namely, that an abortion necessarily involves a “direct killing” in Colb’s cramped sense.  Even if one assents to the applicability here of Colb’s distinction, it doesn’t seem to follow that a fatal interference with endometrial receptivity cannot constitute an abortion, but perhaps only that abortions brought about through different mechanisms may theoretically entail different degrees of moral culpability.  That, likewise, presents no evident inconsistency with the plaintiffs’ objection.

Even if that weren’t the case, it’s hard to imagine it furnishing a convincing basis for “rejecting the ultimate outcome in Hobby Lobby”; since it would reveal no more than that the plaintiffs’ belief system appears inconsistent or illogical (at least to an observer).  By implying that this, in turn, casts doubt on the sincerity of the plaintiffs’ beliefs, Colb arguably strays close to the error condemned by the Supreme Court in Thomas v. Review Board (and alluded to in both the Court’s opinion and the dissent in Hobby Lobby).

For all of these reasons, it seems likely that Professor Colb’s analysis will hold limited persuasive appeal—moral or legal—for anyone not already hostile to normative arguments against emergency contraception and early-stage abortion.

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[*] The author is a lawyer in Washington, D.C.