Free Exercise Clause Protection for Junk Science

By Tom Watts

Today, the Supreme Court decided Burwell v. Hobby Lobby. In this post, I examine an issue that the Court passed over: whether Hobby Lobby’s belief is actually religious. The Court presumed so, but their presumption was incorrect, and the issue is dispositive. This makes the Court’s decision wrong.

The First Amendment protects religious freedom, but it does not provide protection to non-religious beliefs. As the Supreme Court observed in Wisconsin v. Yoder (a case that RFRA explicitly approves), “[I]f the Amish [the religious plaintiffs in the case] asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis.”

This distinction is important in Hobby Lobby because Hobby Lobby’s objection to the contraceptive mandate is not based on opposition to contraceptives; it’s based on opposition to abortion and a belief that some contraceptives are actually abortifacients. Hobby Lobby objects to, for example, emergency contraception, because it “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus,” according to the majority. Hobby Lobby concludes that emergency contraception causes fertilized eggs to die, which it equates with abortion.

The problem for Hobby Lobby is that emergency contraception probably doesn’t work by preventing implantation; the warning label is based on outdated science. Although HHS’s brief (in footnote 4) addressed the mechanism merely by pointing to the warning label, there was an amicus brief spelling out the current science: the best available research suggests that emergency contraception works mainly by preventing ovulation. (This is effective because the risk of pregnancy is greatest for sex right before ovulation; preventing ovulation right after sex substantially reduces this risk.)

Thus, the belief that these contraceptives cause the deaths of fertilized eggs is not a religious belief. A religious belief is a matter of faith; religious beliefs are by their nature non-falsifiable. If we can run tests to determine whether the belief is true or false, the belief is a question of science, not of religion. Religious beliefs can’t be objectively wrong, but Hobby Lobby’s belief is objectively wrong, so it is not a religious belief.

To see this more clearly, imagine that Hobby Lobby refused to provide insurance coverage for stitches because it believed that stitches in a woman’s arm cause abortions. The Court would not even get to strict scrutiny; there would be no burden on Hobby Lobby’s religious exercise, because the belief is clearly nonsense. The belief that Hobby Lobby actually presented in this case should not get to strict scrutiny, either: it’s a scientific belief, and it’s scientifically false.

The Court’s failure to distinguish between religious and scientific beliefs in Hobby Lobby is notable because the distinction often arises in religious freedom cases. For example, New York City has strict vaccine laws for students in public education, and those laws are being challenged on religious freedom grounds, though so far they have been upheld. Anti-vaccine plaintiffs often cite religious freedom, but their beliefs often are scientific rather than religious. For example, if a plaintiff opposes vaccines because the plaintiff has a belief that vaccines cause autism, the plaintiff’s belief may be sincere, but it is not religious, because it’s wrong.

Today, the Court ignored a critical issue, and the resulting decision is seriously problematic. Hopefully, in the future, courts will not pass over this issue. The First Amendment protects religious freedom, but not beliefs subject to proof that have been disproved. Junk science has no Free Exercise Clause protection.

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