Physicians for Reproductive Health has filed a brief on behalf of a number of doctors, contending that Plan B and other-FDA approved contraceptives are not in fact abortifacients. Therefore, Hobby Lobby’s religious exemptions do not apply to these products, because they do not affect the fertilization of the egg. They write:
As demonstrated herein, the weight of the scientific evidence establishes that the FDA-approved contraceptives and emergency contraceptive are not abortifacients. It is respectfully urged that the Court grant a writ of certiorari in this significant case and that any formulation of the issues for review accurately reflect the scientific record and maintain the proper distinction between a contraceptive and an abortifacient.
Now, none of this information was introduced in the record below. The record is silent on this question.
As highlighted by Chief Judge Briscoe’s opinion below, “there is no evidentiary support in the record for plaintiffs’ allegations that the objected-to contraceptive drugs and devices actually have the potential to prevent implantation of fertilized eggs.” Petition App. at 106a.
By the same token, the information in this new brief was never subject to the requirements of Daubert and Rule 702. Hobby Lobby was never given the opportunity to introduce their own experts, and their own scientific evidence to counter this.
In fact, as the brief acknowledges, the lower court DID not consider this matter.
However, as pointed out by the dissenting opinion of Chief Judge Briscoe, below, Respondents’ religious objection to providing coverage for emergency contraceptives Plan B and ella, and for two intrauterine devices, ultimately is premised on Respondents’ belief regarding a scientific matter; namely, their belief regarding how such contraceptives work. Petition App. at 131a-132a (noting that the connection between Respondents’ religious beliefs and their objection to coverage of these contraceptives is “not one of religious belief, but rather of purported scientific fact, i.e., how the challenged contraceptives operate to prevent pregnancy). Although Respondents’ supposition as to the method of action of the challenged contraceptives form the basis of their challenge to the Mandate, the majority below declined to “wade into scientific waters here[.]”
Yet, nothing will stop the Justices from citing this brief, as a matter of first impression, without any opportunity for Hobby Lobby to counter it.
I am always troubled by the fact that scientific facts are cited for the first time in briefs to the Supreme Court outside the context of Daubert and Rule 702. But none of that matters for the Nine.
BTW, I found this brief linked in Linda Greenhouse’s latest Op-Ed. I find myself not really paying attention to her columns. Greenhouse’s analysis simply summarizes leading progressive positions, but seldom offers any new deep insights. Her column is a well-written exegesis of the collective wisdom of the crowds on the left.
And her final paragraph, with a single reference to Justice Scalia is odd. I’m not sure what her point is, as she never mentions him before.
So now, once again, the court will have the last word. A ruling against the contraception mandate won’t kill the Affordable Care Act – much as some justices might fervently desire that result. If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation. Only the old culture warrior, Antonin Scalia, can be counted on to acknowledge the deeper issues in play. But those issues will be there nonetheless, and that’s what makes these cases so compelling.
I suspect this relates to Employment Division v. Smith, but a more casual reader would have no clue.