Articles by Robert Vega
Big Brother might defeat Hobby Lobby, but should beware Little Sister
Jan 31, 2014 / 00:00 am“Risky Business” could well have been an apt title for a film about someone engaged in speculating on U.S. Supreme Court decisions; but it probably would not have performed as well commercially as the Tom Cruise movie of the same name – at least, up until recently. This summer the Court will decide on the applicability of the U.S. Department of Health and Human Services (HHS) contraception coverage mandate to for-profit corporations whose owners have religious objections to the law. For the third straight year, late June Court-watching will not just be the playoffs for spectating lawyers but may draw a broader audience seeking instant coverage of highly controversial decisions. In the coming months, much will be written to forecast what the nine justices will do, with many such forecasts colored by the policy biases of their respective authors. As the whiplash of the 2012 decision that upheld the bulk of the Affordable Care Act reminds us, however, even the most seasoned analysts can be caught off-guard by a knuckleball. With due regard thus given to uncertainty, there is reason to be wary of what the future holds for the for-profit objectors to the HHS mandate. At the same time, there is cause for optimism for religiously-affiliated non-profits, such as the Little Sisters of the Poor, whose cases are working their way through the court system.Much might be gleaned from the fact that the Court, in its discretion, chose to take-up two HHS mandate cases from among the four that were readily available for review this term. The decision to hear a case is made in secret and requires the assent of only four justices. Which cases are selected, however, can sometimes provide more of a clue into the strategic thinking of the justices than doing one’s own exposition of the relevant precedents.It is not surprising that the Court agreed to take-up an HHS mandate case, as lower courts are split on the issue and uniform resolution is needed. Nor is it surprising that one of the cases selected was Hobby Lobby, because it is the only one that the U.S. government wanted reviewed (which customarily receives some deference), it has the largest potential workforce impact, and it stands out as the only one of the four contenders (which also included Conestoga Wood, Autocam, and Liberty University) in which the plaintiffs had thus far prevailed. What is of interest, then, is that a second for-profit corporation’s case, Conestoga Wood, was also chosen and the two were consolidated.Conestoga offers the Court two things that Hobby Lobby does not easily provide – an opportunity to address constitutional religious liberty rights (as opposed to only statutory rights under the Religious Freedom Restoration Act (RFRA) of 1993), and an opportunity to address the rights of corporations’ owners (as opposed to just corporations themselves).In one possible and hopeful scenario, the Court may be looking to expand its understanding of religious liberty under the First Amendment’s free exercise clause. The conservative Justice Scalia authored Employment Division v. Smith in 1990, which made it very difficult for religious minorities to challenge generally applicable laws. Congress passed RFRA to try to undo Smith, but most of RFRA itself (excluding the provisions relevant here) was then struck down by the Court. Smith has few fans and the justices could untangle webs by reopening its constitutional holding. To do that, they would first have to find RFRA insufficient to resolve the cases at hand. The most plausible route would be to decide that for-profit corporations are not “persons” with regard to RFRA but are “persons” with regard to the Constitution’s free exercise clause. This would take some acrobatics but, after Citizens United enshrined corporations’ free speech rights and 2012’s “Obamacare” case declared the individual mandate a “tax” for constitutional purposes but not statutory purposes, it would not be an impossible stretch.Though this Court could thus conceivably be looking to expand constitutional religious liberty and use semantics to get there, it does not like to make rulings on grounds that are any bigger than required. Recent examples include Hollingsworth v. Perry (Proposition 8 same-sex marriage case) and NFIB v. Sebelius (the “Obamacare” case). Constitutional issues are normally not reached unless necessary. Thus, because RFRA provides robust protections, Conestoga was probably not consolidated with Hobby Lobby for its constitutional angle, but rather for its addressing the rights of corporations’ owners.There is cause for concern here. The Court would have no reason to reach the question of owners’ rights if it wanted to affirm Hobby Lobby and recognize corporations’ RFRA rights. The only reason to address the owners’ rights would be if the Court, at the threshold before reaching the substance of the mandate, denies that corporations have rights of religious liberty, because then owners’ rights would remain at issue. In that scenario, if Hobby Lobby alone had been chosen, it would have to be sent back to the lower court for consideration of owners’ rights and other HHS mandate cases that address those rights would still need review. Consolidating Hobby Lobby and Conestoga allows the Court to efficiently resolve owners’ rights in the event that it denies corporations’ rights, but offers no extra benefit if corporate rights are to be recognized.If a for-profit corporation’s right to religious liberty is then not recognized, the next question is how the Court will rule upon Conestoga’s claims that the corporation’s owners themselves are unconstitutionally burdened by the HHS mandate. Before the substance of the owners’ religious liberties can come into play, however, the Court will have to decide the threshold issue of whether a closely-held corporation’s owners are legally burdened by the mandate or if the burden falls only on the corporation itself. If the latter, then we are back to the corporation that, at this point in the scenario, has no religious liberty rights and the case is finished. If the former, then the burdened owners have a solid chance to argue the substance of their claims. But if the Court decided the threshold question in that way, it would have to overcome the legal separation that normally exists between a corporation and its owners. That is doable but would require crafting legal contours for future cases and rock the boat of corporate law more than declaring that corporations have a right to free exercise of religion (they already have free speech rights under Citizens United). Thus, since the Court prefers to not make bigger waves than it has to, it is unlikely that it would deny corporations’ religious rights only to then recognize the same rights for the owners in this case. Ultimately then, while revisiting the constitutional law of Smith is possible, the most probable indication from the Court’s taking-up Conestoga alongside Hobby Lobby is that it will uphold the HHS mandate while ensuring that all necessary angles are addressed.Yet the U.S. government asked the Court to take-up only Hobby Lobby and promised to address individual owners’ rights anyway. Why? Partially because it was the only case that the government lost below, but perhaps also because Conestoga opens thin avenues that can only hurt or leave unaffected the government’s case. The government gains nothing from addressing the owners’ rights but would prefer to do so on its own terms and without the added constitutional angle, rather than have the Court allow a fuller and fairer exposition from both cases. This does not mean that selecting Hobby Lobby alone would have boded worse for religious liberty advocates than consolidating it with Conestoga. Despite the notion that the Court predominantly chooses cases that it intends to reverse, reviewing Hobby Lobby alone would have made the most sense from the Court’s housekeeping perspective only if it had anticipated holding in favor of the corporations. Addressing the other cases without it would have indicated even greater prospects for the for-profit objectors.Fortunately the religiously-affiliated non-profits’ cases will be entirely different because their rights’ existence is undisputed and they therefore do not face the threshold questions that snag for-profit corporations. Groups such as the Little Sisters have a viable case under RFRA. While critics claim that the Sisters do not suffer a requisite “substantial burden” from the HHS mandate and are effectively exempt, the Administration itself unwittingly disproves this by deliberately treating such groups with an “accommodation” that is distinct from the exemption given to strictly religious organizations (e.g. houses of worship). Even under Smith, the “accommodation” for the non-profits is suspect and vulnerable because, although better than the generally applicable mandate, it amounts to thought-out targeting of religiously-affiliated groups distinct from houses of worship. Lastly, Justice Sotomayor denied an emergency injunction to Hobby Lobby in December, 2012, but temporarily gave [then referred to the Court which granted] one to the Little Sisters one year later. While those actions do not officially signal a final result, they might suggest where the Court is leaning. But looking too much into anything would be risky business.
Pulling the rug out from under the pro-life movement (part II)
Nov 14, 2013 / 00:00 amThere is, as mentioned at the outset, a second area in which the pro-choice agenda has been looking to shift the landscape to accommodate their lost ground while still attempting to set-up the pro-life movement for ultimate failure. Realizing that defining a fetus as less than human is increasingly difficult to do with any stretch of science, some in the pro-choice community have taken to supporting infanticide outright. In such cases, advocates admit that abortion is no different than infanticide but, instead of being repulsed by the thought as many people in our present culture are, they propose the expansion of “abortion” to children who are already born. While I do not suspect that the whole corpus of the pro-choice movement presently embraces this shift, it appears quite plausible that those who chart its course are both capable and willing to take it there. Pro-life men and women should take care to not underestimate this reality. In February of 2012, the British-based Journal of Medical Ethics published an article by Alberto Giubilini and Francesca Minerva, “After-birth Abortion: Why Should the Baby Live?” The piece proposed the moral acceptability of infanticide and went viral. A follow-up in the Journal a year later brought commentary from many bioethicists, including some who support infanticide and have done so for years. For the fortieth anniversary of Roe v. Wade in January of this year, Mary Elizabeth Williams wrote a well-traveled article on the online magazine, Salon, entitled “So what if abortion ends life?” To her credit, she wrote with honesty that abortion takes the life of a human being and called-out the illogic of her less-straightforward peers. But then she proceeded to justify the taking of unborn lives on the basis of [what she believes to be] a mother’s existential superiority over her unborn child, saying “She’s the boss.” In March, Alisa LaPolt Snow of the Florida Association of Planned Parenthood Affiliates made headlines for her testimony before a committee of the Florida House of Representatives. At the hearing, relating to consideration of HB 1129 (a bill, now law, to protect infants who survive abortions), Snow stated the position of Planned Parenthood was that decisions about whether to treat an infant born alive in a botched abortion should be left to the mother, the family, and the physician. Planned Parenthood later backtracked on those statements, but one cannot simply unring the bell.While the negative coverage surrounding Kermit Gosnell may provide some hope that infanticide is not yet accepted by even a majority of the pro-choice community, the foregoing string of high-profile instances of its being condoned are likely a sign of things to come. The legal taking of newborns’ lives has an unfortunate history in many times and places – early Christians, in fact, often saved children discarded by Roman parents – and the pro-life movement cannot afford to presume that it will not arise in our present society.Pro-lifers must now cultivate ways to convince people not only that fetuses are fully human beings, but that weak or voiceless human beings at any stage should not be extinguished. Perhaps this could appeal simply to self-interest by reminding listeners that they may one day be in a debilitated and voiceless condition and that a legal regime that permits the taking of infants’ lives could logically turn against them as well. Should a listener then appeal to a putatively altruistic utilitarianism in which the death of some is an acceptable price for the convenience of many, one might propose that a society that embraces such a principle would hardly be of utility for the many who would live with the knowledge that they or their loved ones might one day be taken away against their will and without recourse on earth. Whatever path pro-life advocates may take in addressing these troubling developments, it is imperative that they do address them soon and do so strongly. The changing landscape of the conversation, with regard to both the youngest of humans immediately after conception and those who are newly born, threatens to pull the carpet out from under the pro-life movement. To succeed, the movement must not only stand firm but begin reestablishing its footing to meet these new challenges.Editor's note: This is the second in a series of two columns. To read Mr. Vega's first column, click here.
Pulling the carpet out from under the pro-life movement (part I)
Nov 7, 2013 / 00:00 amLeaders of the pro-choice movement know that they are losing ground – if not in the policy or practice of abortion, then at least in the public debate over its nature, which is a good first step for pro-lifers. Gone are the days when someone can keep a straight face while referring to an unborn child as “just a clump of tissue.” In a world of 3D ultrasounds, greater understanding of DNA, sophisticated pre-natal surgeries, and prospects for an ever-younger age of viability outside the womb, the idea that an abortion is anything other than the taking of a fully human life is increasingly untenable to all but the most zealous. In response to these developments, however, the pro-choice movement is quietly changing the landscape of the conversation and reframing the issue in their favor. This is happening on two fronts – at the earliest stages of pregnancy and shortly after birth. If the pro-life movement does not soon counter these tactics in an insistent and widespread manner, the ensuing loss of political and legal progress will be overshadowed only by the loss of life.First, “abortion” itself has been subtly but rapidly redefined by the media and political figures to no longer refer to the termination of the entity that results from fertilization but to the termination of a pregnancy. This alone is not a major shift in phraseology but the definition of pregnancy, in turn, has been finessed to apply only when an embryo has implanted into the uterine wall, rather than at the moment of conception which typically occurs a few days prior. These definitions make sense in the pro-choice mindset where pregnancy exclusively concerns a woman; but for those who are pro-life and believe that life begins at conception and that pregnancy is (at the very least) about a woman and her child, the results of this linguistic sleight of hand are devastating. Countless untold abortions are induced by drugs in the days between fertilization and implantation and people, whether pro-life or pro-choice, are left in the dark as policymakers, pharmaceutical advertisers (such as those behind the claims in Plan B commercials), and statisticians carry on with the notion that such occurrences are simply not abortions and, hence, not even up for discussion.By blinding people to the fact that these abortions are even taking place, the culture of death takes on an even more inconspicuous disguise. For just as the violence of abortion in general is easily ignored because the victims are unseen and unheard, the violence of pre-implantation abortion is being pushed under an additional layer of invisibility and denial. This has very real implications for the future of the pro-life movement in both law and politics. The unfortunate norm is now such that any mention of abortion in law or public discourse is assumed to not cover termination of the unborn who have not yet implanted into the uterine wall. So, for example, any provision in federal legislation in which funding for elective abortion is restricted is interpreted to not address abortions, induced by drugs such as Plan B, that occur between fertilization and implantation. Those instances may thus remain fair game for federal funding or subsidies unless very specific definitions are drafted to state otherwise. Relatedly, to some public officials, the acceptability of the Department of Health and Human Services’ contraceptive mandate depends on the dubious principle that life begins at implantation rather than conception. Additionally, when one truly considers non-implanted human embryos to be fully human beings, there are negative but oft-ignored implications for the practice of in vitro fertilization, namely in the treatment of unused embryos. Suffice it to say, if the pro-life movement is going to succeed in changing the laws of the United States to respect all human life, from conception through natural death, it will ultimately (if not all at once) need to clearly address all types of abortion.It should be clearly noted, in light of common claims, that Plan B is not completely like RU-486 or surgical abortion, which specifically target an implanted embryo or fetus. It is, however, somewhat analogous to discharging a firearm upon a dwelling place – there might be no one home, the discharge might not result in death, and it might only be intended to deter entry rather than cause death; but the act is of such a dangerous nature that it should be avoided by one who does not wish death to occur. This conclusion can only be reached, however, when pro-life advocates reassert their position that life begins at conception and refuse to let pro-choice messengers dictate a new definition in which being pro-life means believing that life begins only at implantation.There is a sad but telling irony in the pro-choice community’s support of pre-implantation abortion. One argument commonly employed in support of abortion, in its general sense, centers on the fact that the unborn are utterly dependent on their mothers for survival before the age of viability. This state of dependence is made manifest by an embryo’s attachment to the uterine wall, the yolk sac, and, later on, to the umbilical cord. For the zygote freely floating for a handful of days after its conception and before implantation, however, there is no such physically solid link. In a way, though certainly still dependent on the mother’s body, the young zygote is more independent than he or she will ever be during the rest of the pregnancy. Yet, strangely, it is during this very same time period that the pro-choice camp argues that termination amounts to even less than an abortion, both medically and morally.Editor's note: This column is the first of two pieces on "Pulling the carpet out from under the pro-life movement." The second half will be posted Nov. 14, 2013.