Jonathan Adler refutes the idea that Hobby Lobby is basing its opposition to four forms of birth control on “bad science.” (Hat tip.) Prof. Adler’s thesis is that religion isn’t rational, so we shouldn’t expect religious opposition to fit within scientific parameters, and the idea that life begins at conception (not implantation or some other point) is a religious idea.
With all due respect to the professor, I think he gets it wrong, at least as applied to this particular set of facts. There is no doubt within the scientific community that life begins at conception, and it is within the realm of science to define “life” and to learn where that life starts. What science cannot tell us is the value of that human life, or whether its life is just as valuable at conception as at age thirty. Ethics, including religion, inform our understanding of the value of human life at its earliest stages, and that – the worth of a tiny human being – is the fundamental issue in the Hobby Lobby case.
Consider that science tells us that you, dear reader, need oxygen to survive. What science cannot determine is whether you have a natural or a legal right to oxygen, if those who deprive you of oxygen should be deterred by force from doing so or punished if they succeed, or if it is worthwhile to provide you with oxygen. Those are matters about which science is ill-suited to address, but fall squarely within the realm of ethics, religion, and morality. This is, of course, analogous to the issue that the Green and Hahn families have with providing Plan B and IUDs to their employees.
I will also point out that the opponents of Hobby Lobby’s religion play semantics and then complain that the other side doesn’t live up to the resulting foolishness. The Green family opposes some forms of birth control that work by ending a preexisting human life. They are unconcerned as to whether that methodology is to remove a baby that is attached to the uterine wall or to prevent it from attaching in the first place: either way, that is the deliberate ending of a human life. Prof. Adler inadvertently gets into this trap when he mentions that scientific authority defines “pregnancy” as commencing with implantation, as if the Greens give a damn about pregnancy, per se. Prof. Adler’s statement is akin to saying that the Greens should have no problem paying for people to strangle infants shortly after they exit the birth canal, for that is not “ending a pregnancy” or “an abortion.” That twists the pro-life ethic, as the Greens disapprove of anything that deliberately ends a human life, abortion- or pregnancy- related or not.
The Fog of Law 