What Do Tractors Have to Do With Birth Control?

Posted on May 21st, 2014 by Cindy Gao

From Center for Gender & Sexuality Law Public Rights/Private Conscience Director Kara Loewentheil.

2013 tractorWhat do tractors have to do with birth control? I’m glad you asked. To find out, let’s take a look at a fascinating exchange that occurred recently during oral argument in one of the cases challenging the Affordable Care Act’s contraceptive coverage requirement. The dialogue was between the counsel representing Priests for Life and Judge Rogers of the United States Court of Appeals for the D.C. Circuit.[1] During oral argument, Judge Rogers launched a line of questioning based on a seminal case, Thomas v. Review Board of the Indiana Employment Security Division, in which the plaintiff, a Jehovah’s Witness, unsuccessfully applied for state unemployment benefits after quitting his job because the factory where he worked had transferred him from a closing “roll” department (which manufactured steel for industrial uses) to a department that produced turrets for military tanks. The Supreme Court held that the denial of unemployment benefits had violated Thomas’ free exercise rights, and famously opined that:

Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.[2]

Building on this case, Judge Rogers asked counsel for Priests for Life:

Would it have been open to the Court to have found that in fact, as a matter of fact, the munitions factory for which it [sic] worked was not supplying arms for the war, that in fact it was supplying gadgets for tractors used on farms? Could the Court have examined whether his statement about what his employer was doing was correct?

The Priests for Life lawyer responded that no, it could not, saying that “Even if the religious belief is based on a factual error, the court must accept that factual error.”

I want to highlight here the way in which this claim has implications beyond the particular cases that were heard at oral argument, which only focus on the accommodation offered to religiously-affiliated institutions. The position taken by the counsel for Priests for Life in the oral argument referenced above would insulate not only unknowable metaphysical questions, but distinctly knowable scientific and medical questions, from review when they are presented in the context of a request for a religious accommodation. The Court in Thomas v. Review Board was dealing with a situation in which the plaintiff’s chosen line – that he would work on steel for industrial uses but not for weapons – seemed like a reasonable line to draw, given the context of his beliefs. That was the question that the Court, rightly or wrongly, insulated from review. Thomas had said that he would not object to helping produce raw steel that could later be made into weapons, but that he did object to producing the weapons themselves. This was the distinction that the Court said was not appropriate to review. Whatever we may think of the implications of that sentiment, or how expansively it should be read, the idea that a mistake of fact cannot be reviewed is an entirely different – and enormously more capacious – assertion.

As an example of the danger of this principle, we need look no farther than contraceptive access, both in the other contraceptive coverage requirement cases and in other types of claims for accommodations that can impede contraceptive access, like pharmacist refusals and hospital services.  The entire basis of the claims in Hobby Lobby and Conestoga Woods is that the plaintiffs don’t object to providing insurance coverage for contraception generally, but “merely” those forms that they believe are abortifacients. “Believe” is the key word – the scientific and medical definition of abortion is the termination of a pregnancy, and a pregnancy only occurs when a fertilized egg has implanted in a woman’s uterus. The vast majority of scientific research and authority supports the proposition that contraception, including emergency contraception, works by preventing implantation, and does not affect an existing pregnancy. The assertion that a court cannot question the scientific validity of this belief – which, remember, is not a belief about the metaphysical question of “when life begins” but a belief about the scientific question of what constitutes a pregnancy and what can end it – insulates the entire matter from judicial review.

It is no accident that courts have been willing to by and large ignore the factual discrepancy between the “belief” about what constitutes an abortion and the medical fact about what constitutes an abortion in the contraceptive coverage requirement cases. Abortion exceptionalism means that when cases concern abortion – and these days, contraception – the usual rules of play seem to be suspended. It is hard to imagine that if the plaintiff in Thomas truly had been working in a factory that produced tractor parts, courts would have been as sanguine about that error as they seem to be about the idea that emergency contraception causes abortions, nor as willing to give it credence simply because it comes to them attired in the garb of a religious belief.

[1] Thanks to our colleagues at Hamilton and Griffin on Rights for alerting me to the exchange featured in this posting. They too note at the end of their post the connection to the contested definition of abortion I have explored here. I have relied on their transcription of the argument for this post.

[2] Thomas v. Rev. Bd. of the Indiana Emp’t Sec’y Div., 450 U.S. 707, 715 (1981).


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