Over at the Volokh Conspiracy blog the other day, Jonathan Adler set out what seems to me to be a fairly amazing argument about the Supreme Court’s Hobby Lobby decision.
His argument hinges on the notion that the Court was correct to interpret the Religious Freedom Restoration Act to mean that it doesn’t much matter whether something actually constitutes a substantial burden to a person’s religious belief so long as the person believes that it does:
At this point some critics may respond that it’s one thing for a religious adherents to make spiritual claims, but quite another for them to rest a religious claim on a demonstrably false fact about the physical world. Perhaps, but that was not what was at issue here. The Hahns and Greens believe life begins at conception. This is a religious belief. Whether or not medical experts or federal law define life the same way is irrelevant, as is the fact that medical authorities define implantation of the fertilized egg as the start of a pregnancy. It is the Hahns and the Greens sincere religious belief that these four methods of contraception are capable of causing a grievous wrong, and that is not something for the courts to question.
Some critics note that current scientific evidence undermines claims that the four methods at issue prevent implantation. This is true, but also fails to substantiate the Hobby Lobby-is-anti-science claim. The best scientific evidence available suggests that these forms of contraception rarely, if ever, prevent implantation, but the evidence is not-yet-conclusive and RFRA plaintiffs are hardly required to adopt prevailing scientific views to press their claims.
The implications of this argument are astonishing. It means that it doesn’t matter if the plaintiffs in RFRA-related cases are incorrect about the facts as long as they believe deeply enough that they are right.
Because the families at the center of this lawsuit believe that a ball of cells that hasn’t implanted in the uterus is a person with the same rights as you and me, it doesn’t matter that the contraception methods they oppose aren’t actually abortifacients or that a ball of cells isn’t actually a person with the same right as you and me. Anything that happens to that ball of unimplanted cells that doesn’t result in the birth of a baby is an abortion, according to their beliefs. And thus it’s a terrible violation of their religious beliefs to provide coverage for some forms of contraception that they believe might have anything to do with what happens to that ball of unimplanted cells (even if those forms of contraception don’t actually do what they think they might do).
But there’s really a deeper mistake here … and that’s the issue. The Greens and the Hahns and, I think, Adler, are incorrect about what these forms of birth control are designed to do. They aren’t designed to prevent implantation of the ball of cells that might or might have a soul (something we can’t determine one way or another and, thus, which is an a-ok religious belief); they’re designed to prevent fertilization in the first place. In other words, the purpose of the IUD and Plan B is to prevent the ball of cells from coming into existence in the first place.
So, while it’s not actually the case that these forms of contraception do what the Hahns and the Greens believe they do, as a matter of law, it now doesn’t make any difference … because the Hahns and the Greens believe that they do.
The lesson in all this, kids, is that if you believe strongly enough, something that isn’t true magically becomes true!