Hobby Lobby and the Sanctity of Human Life

Ugh. Not a good day for the law. Not on any dimension. The policy of these decisions is horrible. Admittedly it's not as horrible as it could have been had Alito not decided to write deliberately narrowed opinions. But the price of that narrowness was absolute legal absurdity. I mean, there was plenty legal absurdity anyway, but the narrowness created even more. I don't really think it's possible to maintain that what the Court was doing today was law. Not really. And that actually offends me pretty deeply, as someone who believes that there is such a thing as doing law, for real, in the best sense of that word.

But here's a slightly ancillary thought I have about the Hobby Lobby decision. The purported reason why providing coverage to their employees that included contraception would have violated Hobby Lobby's religious beliefs is that certain forms of contraception were, in the store's owners' view, abortifacients. And we all know that opposition to abortion is that most sincere of religious beliefs; religious people of a certain type are committed to seeing abortion as murder, because they supposedly value the sanctity of human life. And, y'know, I gotta say, I see the ethical case that late-term abortion is something seriously resembling murder, or rather homicide (the difference being that the former assumes the wrongfulness of the act). I have pretty good reasons, I think, for not thinking this means we should criminalize it, although I do think there might be ways to regulate late-term abortions in some way. But I do think we should view late-term abortions as a pretty serious moral Bad Thing, and work hard to minimize the frequency with which it's the least-bad option.

But that's not what Hobby Lobby is about. Hobby Lobby is about birth control. It's about IUDs, which prevent the implantation of a fertilized egg on the uterus wall. This, like a few other forms of birth control (but unlike, say, condoms), prevents pregnancy after the moment of conception rather than before it. It operates at the post-zygotic stage. And therefore certain religious types, though apparently not the medical or legal community, consider it to cause an abortion, and to end a human life. (Apparently scientific types think life begins at implantation or something.) Here the ethics aren't so complicated: the ethical badness of destroying a pre-implantation zygote is precisely zero. It's the same thing as killing a bacterium. It has one cell. It has no computing power, no sensory apparatus. It does not have experiences. It cannot feel pain. It does not have a beating heart. It differs in this regard, of course, from later-stage fetuses, but zygotes and blastocysts are just ethical nullities.

Now, my point could be that it's ridiculous, and kind of sick, to think that destroying one of these nullities is the same thing as killing a living human being. But it isn't. Rather, my point is that it is deeply sick to think that killing a living human being is the same as destroying one of these nullities. That is to say, I don't think it's really possible that anyone at all reacts to the death of a blastocyst or a zygote the way one is supposed to react to the death of a human being. I do think it's possible that people react that way to the death of an eight-month fetus or whatever, and at some point in between it flips, but let's just say that that point is sometime after there are at least 16 cells in the organism. And so if you maintain that you view the two as equivalent, that you think IUDs are murder, well, that's gotta tell us something about how much respect you have for, like, ordinary human life, right? And it tells us nothing good. I think it's gotta tell us that the sense in which you condemn ordinary murder is somehow cheaper than it should be. If the value that you place on human life doesn't change from the moment of conception all the way through the moment of death, I don't think that value can be as high as the value that I place on human life from birth through death. There's just no way you can actually be giving that much value to a zygote, not really. Maybe you have some kind of theological sophistry telling you that killing zygotes is sinful, but you can't really believe that aborting them is murder, not the way we mean that word.

So either there's an act of dishonesty going on, at some level, when people say they think these contraceptive devices cause murders, or these religious types have just tipped that their conception of the "sanctity of human life" is awfully shallow. One or the other, and neither is exactly great.