Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius
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——_ ————,, —
RECORD
AND In The En at Bee hae. F
BRIEFS Supreme Court of the United States
7
CONESTOGA WOOD
SPECIALTIES CORPORATION, et al.,
Petitioners,
v.
KATHLEEN SEBELIUS,
Secretary of Health and Human Services, et al.,
Respondents.
ip
a
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
hf
7
AMICUS CURIAE BRIEF OF ASSOCIATION
OF AMERICAN PHYSICIANS & SURGEONS,
AMERICAN ASSOCIATION OF PRO-LIFE
OBSTETRICIANS & GYNECOLOGISTS,
CHRISTIAN MEDICAL ASSOCIATION,
CATHOLIC MEDICAL ASSOCIATION,
THE NATIONAL CATHOLIC BIOETHICS CENTER,
PHYSICIANS FOR LIFE, AND
NATIONAL ASSOCIATION OF PRO LIFE NURSES
IN SUPPORT OF PETITIONERS
—_
7
DENISE M. BURKE
MAILEE R. SMITH
Counsel of Record
ANNA R. FRANZONELLO
Mary E. HARNED
WILLIAM L. SAUNDERS
AMERICANS UNITED FOR LIFE
655 15th St. NW, Suite 410
Washington, D.C. 20005
Telephone: 202-289-1478
Facsimile: 202-289-1473
Email: Mailee.Smith@AUL.org
WWW COCKLELEGALUKIEFS COM
COCKLE LEGAL BRIEPS (#10) 226 6864 of Coneres?
i
TABLE OF CONTENTS
Page
po gg 8 gy | > re ii
STATEMENT OF INTEREST OF AMICI
EL 1
SUMMARY OF ARGUMENT ................0...0....0004 4
A 6
I. It is Undisputed that a New Human
Organism is Created at Fertilization........ 6
II. Drugs and Devices Defined by the FDA as
“Emergency Contraception” Have Post-
Fertilization Mechanisms of Action........... 8
A. Plan B can prevent implantation........ 11
B. Ulipristal Acetate (ella) can prevent
implantation or kill an implanted
isi cnicccbsedndaeunsiandenibasassedes 12
C. Intrauterine Devices may also pre-
Ds csccncrcercesesnovcccessssecnce 15
III. The Mandate Violates Sincerely Held
Religious Beliefs and Freedom of Con-
EES ar Een a 16
A. Freedom of Conscience is a fundamen-
tal right affirmed by our Founders...... 17
B. Freedom of Conscience is a funda-
mental right affirmed by this Court... 22
C. Freedom of Conscience is a funda-
mental right affirmed by Congress ..... 27
etal dss asdarnenenaeebivcrcopasdtesdasasersocosee 30
i
TABLE OF AUTHORITIES
Page
CASES
Association of American Physicians & Surgeons
uv. Clinton, 997 F.2d 898 (D.C. Cir. 1993).................. 2
Association of American Physicians & Surgeons
v. Mathews, 423 U.S. 975 (1975) ............ccccccecsccecscees 2
Baird v. State Bar of Ariz., 401 U.S. 1 (1971) ........... 22
Cantwell v. Conn., 310 U.S. 296 (1940)............... 22, 23
Cheney v. United States Dist. Court, 542 U.S.
Se RI icsscthicidna sisccnsabebaciciiastaucestbiehninbiasonabasieaasinipbenieaaseciveds 2
Citizens United v. Fed. Election Comm’n, 558
ee eR ciitnssceniensticcionstinuninedeinlnnteicipliiineitanmueee 22
District of Columbia v. Heller, 554 U.S. 570
FED initarnincncaidceniiatlbenidiensniansieeessiaaetbasniaisemmibdaiidietansid 2
First Nat'l Bank of Boston v. Bellotti, 435 U.S.
Ne I i scinstinichusccheeinasitiestigaiisbliahiuaaiaahgabtaaan ala esd 22
Minersville Sch. Dist. v. Gobitis, 310 U.S. 586
SIE iicisistiethicteasRashapiatisepinensbanbeabindiilaiipiedeiataaatiaaedealida nak iealon take 23
Planned Parenthood v. Casey, 505 U.S. 833
RENT Raiaiticcsaiiesnsndste-beninianicinssiindiniaddamiibmiedaiansenkandlotinie 24, 25
Roe v. Wade, 410 U.S. 113 (1973)................-..sececceeeeee 27
Springer v. Henry, 435 F.3d 268 (3d Cir. 2006) ........... 2
Stenberg v. Carhart, 530 U.S. 914 (2000).................... 2
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
Be SE NEES a iitinassccssncinseadicatoietnonedantoicastucoaes 22
United States v. Seeger, 380 U.S. 163 (1965)....... 25, 26
ill
TABLE OF AUTHORITIES -— Continued
Page
Welsh v. United States, 398 U.S. 333 (1970)........ 25, 26
West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943)...........0......... 23, 24, 25
FEDERAL LAW AND REGULATIONS
I ia etctilaen 17
Se nD scsi ovoutins siecannaduceechindendbebehentdectuabees 17
ee ee MIE FD cs vnseninscnaconesaccesenctbinsscuneonsodiens 17
ee ee IE I os vccnensrcnnoncavccdeccntondenseecotabesuce 17
REE pe rene soe eee vee eer REA 28
I CE ona ead deaeoneaneaabasookans 27
sO so icvcnceassedsdcuboussuosusnqusiisceumeasioimasins 28
Se OTD os siinccccnanasvalvesdrnnackacnendeécarwenteene 28
Fe FI vecnccccvenscevcessecetncssecsesescrnevesatnbns 28
Or ee I srncvcnsnccannccunsssanecsaveisncvecsacuunovests 28
ee ie STD iincccccuvecrunsnstuanennusdshuguoowtensdanedesinns 28
42 U.S.C. $OOOGa-13 «.2.......20200c-cececececscccecenecescsececsssseeses 4
42 U.S.C. §300gg-22(b) 2M Ci) .....cceccecesescsesceeeseseeseees 17
42 U.S.C. §1395w-22(j XB B).....cccccececesesesesesssssteeeeeees 28
ee ls IIIT F Bitetnascnciscnsensavcsnccesrevsetcoscseveun 28
Pub. L. No. 108-7, 117 Stat. 11, 126-27 (2000).......... 29
Pub. L. No. 108-7, 117 Stat. 11, 472 (1999) .........0..... 29
Pub. L. No. 108-25, 117 Stat. 711, 733 (2003) ........... 28
iv
TABLE OF AUTHORITIES - Continued
Pub. L. No. 110-161, §508(d), 121 Stat. 1844,
ZQ09 (2007) 2... e cece eee ceecececcccccececcececcecececeee
U.S. CONST. amend. [....... ccc cece eee ceececeececeeceececees
OTHER SOURCES
Adams, A Declaration of the Rights of the
Inhabitants of the Commonwealth of Massa-
chusetts, in REPORT FROM COMMITTEE BEFORE
THE CONVENTION OF DELEGATES (1779) ..............
Berg, Free Exercise of Religion, in THE HERIT-
AGE GUIDE TO THE CONSTITUTION (2005).............
Boyd, THE PAPERS OF THOMAS JEFFERSON (1950)..
Condic, When Does Human Life Begin? A
Scientific Perspective (The Westchester Insti-
tute for Ethics & the Human Person Oct.
2008), http://bdfund.org/wordpress/wp-content/
uploads/2012/06/wi_whitepaper_life_print.pdf..
Cong. Research Serv., RL 7-5700 (Feb. 24,
ahs Hel aiccadennisitacekuinddeveksnendincannnnckeinianialieehubacitiin
Coy et al., Roles of the oviduct in mammalian
fertilization, REPRODUCTION 144(6):649 (Oct.
ED sina etn iecdbiabatiticoibileinnsinansidinnnnnsiseinnianpinnicenebedisieiie
Cushing, THE WRITINGS OF SAMUEL ADAMS (vol.
I is nced daonassiedvisedinnnnnnenrannaiiieusatenneiis
TABLE OF AUTHORITIES ~— Continued
Department of Health and Human Services,
Birth Control Methods (Nov. 21, 2011),
http://www.womenshealth.gov/publications/our-
publications/fact-sheet/birth-control-methods.
Duramed Pharmaceuticals, How does Plan B One-
Step work? (2010), http://www.planbonestep.
Tee ede aes cabs incancsasiwerenensess
ella Labeling Information (Aug. 13, 2010),
http://www.accessdata.fda.gov/drugsatfda_docs/
label/2010/022474s000Ibl. pdf ..............2..........22.
European Medicines Agency, Evaluation of
Medicines for Human Use: CHMP Assess-
ment Report for Ellaone (2009), http://www.
ema.europa.eu/docs/en_GB/document_library/
EPAR_-_Public_assessment_report/human/
001027/WC500023673. pdf .......cccccccceceeeseseseseeees
Food and Drug Administration, Birth Control
Guide (Aug. 2012), http://www.co.burke.nc.
us/vertical/sites/%7BDF44FA7A-21E3-466A-
A30D-00122906F 160%7D/uploads/FDA_Birth_
Control_Guide-_Updated_August_2012.pdf......
Food and Drug Administration, FDA’s Decision
Regarding Plan B: Questions and Answers
(updated Apr. 30, 2009), http://www.fda.gov/
cder/drug/infopage/planB/planBQandA. htm .....
Page
vi
TABLE OF AUTHORITIES — Continued
Page
Gacek, Conceiving Pregnancy: U.S. Medical
Dictionaries and Their Definitions of Concep-
tion and Pregnancy, FRC INSIGHT PAPER
(Apr. 2009), http://downloads.frc.org/EF/
IRIN cc cccxncvapchnavoveuscontanedsanvaladernvinvsuadaenand 9,13
George & Tollefsen, EMBRYO (2008) ................:ceeceeeeeees 6
Glasier et al., Ulipristal acetate versus
levongestrel for emergency contraception: a
randomized non-inferiority trial and meta-
analysis, 375 THE LANCET 555 (Jan. 2010)....... 13, 14
Harrison & Mitroka, Defining Reality: The
Potential Role of Pharmacists in Assessing
the Impact of Progesterone Receptor Modula-
tors and Misoprostol in Reproductive Health,
45 ANNALS PHARMACOTHERAPY 115 (Jan. 2011)....... 13
Health Resources and Services Administration,
Women’s Preventive Services: Required Health
Plan Coverage Guidelines (Aug. 1, 2011),
http://www.hrsa.gov/womensguidelines/.................. 5
Jefferson, Letter to Edward Dowse, Esq. (Apr.
URL ENE 1s sci csndeccesenarwpucnca ribhdscbincuedosanimbecnsseeacininioean 22
Jefferson, Letter to New London Methodists
PR rin Libr oe aie ariasiateceeriaas Caceabsae a mercaanmaee 18
Jefferson, Notes on Virginia (1785)...............2.00.00cc0ee 18
Madison, Memorial and Remonstrance Against
Religious Assessments J 15 (1785) ..........:.ccceeeeeeeeee 19
Madison, Speech Delivered in Congress (Dec.
Be WI to catisSecnastccavvain scceptabohe ice weaeeauinntanentnrsonevanen 20
Vii
TABLE OF AUTHORITIES ~— Continued
Marcello et al., Fertilization, ADV. Exp. BIOL.
Ser oa at ee aeeaaiaabasens
Marsden et al., Model systems for membrane
fusion, CHEM. Soc. Rev. 40(3):1572 (Mar.
PIED siscdacidisdasciavensidbencaupaedecdncbusdieabasanalandaamnenmmetads
McConnell, The Origins and Historical Under-
standing of Free Exercise of Religion, 103
Yee a ee ae
Milton, THE QUOTABLE FOUNDING FATHERS: A
TREASURY OF 2,500 WISE AND WITTY QUOTA-
IIE CE Bisstodesiened es cacaisesdatysenacsseendatesdidesucweanetnencta
Moore & Persaud, THE DEVELOPING HUMAN (7th
ESTED cicknuic. cca nibadaceadanecdcaguseacedmubsaddonasoususenmiiaaianmcrs
National Institutes of Health, Medline Plus
Merriam-Webster Medical Dictionary (2013),
http://www.merriam-webster.com/medlineplus/
ERO ois cciancssansdscaproncnenantestasshndahensernenimenneeees
Novak & Novak, WASHINGTON’S Gop (2006)..............
Okada et al., A role for the elongator complex
in zygotic paternal genome demethylation,
NATURE 463:554 (Jan. 28, 2010) ...0.0.0..ceee eee eee ee
Plan B Approved Labeling, http://www.
accessdata.fda.gov/drugsatfda_docs/nda/2006/
021045s011_Plan_B_PRNTLBL.pdf ...............2......
vill
TABLE OF AUTHORITIES — Continued
Raymond et al., Embracing post-fertilisation
methods of family planning: a call to action,
J. FAM. PLAN. REPROD. HEALTH CARE (2013),
http://press.psprings.co.uk/jfprhc/september/
SE Wiierthuntickinbidcinedsmadaionindice
Rights of Conscience Overview, in DEFENDING
LIFE 2013: DECONSTRUCTING ROE: ABORTION’S
NEGATIVE IMPACT ON WOMEN (2013), http://
www.aul.org/wp-content/uploads/2013/04/06-
Freedom-of-Conscience.pdf...........2....2.::sseeeeeeeee
Signorelli et al., Kinases, phosphatases and
proteases during sperm capacitation, CELL
TISSUE RES. 349(3):765 (Mar. 20, 2012)............
Transcript of Bench Trial, Morr-Fitz, Inc. v.
Quinn, 2012 IL App. (4th) 110398 (Ill. App.
ee Ss: Wy Si retitinicnccccnendccccxcccunsnsatiaisienncenies
Transcript, Food and Drug Administration
Center for Drug Evaluation and Research
(CDER), Advisory Committee for Reproductive
Health Drugs (June 17, 2010), http://www.fda.
gov/downloads/AdvisoryCommittees/Committees
MeetingMaterials/Drugs/ReproductiveHealth
DrugsAdvisoryCommittee/UCM218560. pdf ....
Trussell et al., Emergency Contraception: A
Last Chance to Prevent Unintended Pregnan-
cy (Office of Population Research at Prince-
ton University June 2010).............0...00.22. cee eeeee
Page
1X
TABLE OF AUTHORITIES — Continued
Page
Wallace, Health and Human Services Secretary
Kathleen Sebelius Tells iVillage “Historic” New
Guidelines Cover Contraception, Not Abortion
(Aug. 2, 2011,) http//www.ivillage.com/kathleen-
sebelius-guidelines-cover-contraception-not-
abortion/4-a-3697 7 1l#axzz2Bl650Ssz.................. 9,10
Washington, Letter to the Religious Society
ey SS IN oak icosce, cob ataanecaceonesanueues 21
STATEMENT OF INTEREST
OF AMICI CURIAE'
Amici curiae are seven national organizations
whose members include physicians, bioethicists, and
other healthcare professionals who have a profound
interest in protecting human life in their roles as
healthcare providers and medical experts. As experts
in the medical field, Amici provide documentation
that a new human organism undisputedly begins at
fertilization, and that “emergency contraception” has
post-fertilization mechanisms of action.
Amici are sensitive to healthcare disparities and
support of a variety of public and private efforts that
address health care affordability and accessibility.
However, Amici oppose Respondents’ requirement on
nearly all private insurance plans to cover drugs and
devices with post-fertilization (i.e., life-ending) mech-
anisms of action. This requirement violates sincerely
held religious beliefs and freedom of conscience.
Amici include the following medical and ethics
associations:
" Pursuant to this Court’s Rule 37.2(a), the parties received
at least ten-days’ notice of the intent to file this brief. Written
consent from both parties is filed along with this brief. Pursuant
to this Court’s Rule 37.6, Amici state that no counsel for any
party authored this brief in whole or in part, and no such
counsel or party made a monetary contribution intended to fund
the preparation or submission of the brief.
2
Association of American Physicians & Sur-
geons (AAPS) is a national association of physicians.
Founded in 1943, AAPS has been dedicated to the
highest ethical standards of the Oath of Hippocrates
and to preserving the sanctity of the patient-
physician relationship. AAPS has been a litigant in
this Court and in other appellate courts. See, e.g.,
Cheney v. United States Dist. Court, 542 U.S. 367, 374
(2004) (citing Association of American Physicians &
Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993));
Association of American Physicians & Surgeons uv.
Mathews, 423 U.S. 975 (1975). In addition, this Court
has specifically cited amicus briefs submitted by
AAPS in high-profile cases. See, e.g., Stenberg v.
Carhart, 530 U.S. 914, 933 (2000); id. at 959, 963
(Kennedy, J., dissenting); District of Columbia v.
Heller, 554 U.S. 570, 704 (2008) (Breyer, J., dissent-
ing). Similarly, the Third Circuit cited AAPS in the
first paragraph of one of its opinions, ruling in favor
of AAPS’s position. See Springer v. Henry, 435 F.3d
268, 271 (3d Cir. 2006).
American Association of Pro-Life Obstetri-
cians & Gynecologists (AAPLOG) is a non-profit
professional medical organization consisting of 2,500
obstetrician-gynecologist members and associates.
Significantly, American College of Obstetricians and
Gynecologists (ACOG) has recognized AAPLOG as
one of its largest special interest groups. AAPLOG is
concerned about the potential long-term adverse
consequences of abortion on a woman’s future health
and continues to explore data from around the world
3
regarding abortion-associated complications in order
to provide a realistic appreciation of abortion-related
health risks.
Christian Medical Association, founded in
1931, is a non-profit national organization of Chris-
tian physicians and allied healthcare professionals
with almost 16,000 members. It also has associate
members from a number of allied health professions,
including nurses and physician assistants. Christian
Medical Association provides up-to-date information
on the legislative, ethical, and medical aspects of
abortion and its impact on maternal health.
Catholic Medical Association is a non-profit
national organization comprised of almost 2,000
members covering over 75 medical specialties. Catho-
lic Medical Association helps to educate the medical
profession and society at large about issues in medi-
cal ethics, including abortion and maternal health,
through its annual conferences and quarterly journal,
The Linacre Quarterly.
The National Catholic Bioethics Center,
established in 1972, conducts research, consultation,
publishing, and education to promote human dignity
in health care and the life sciences, and derives its
message directly from the teachings of the Catholic
Church.
Physicians for Life is a national non-profit
medical organization that exists to draw attention to
the issues of abortion and “contraception.” Physicians
for Life encourages physicians to educate their
4
patients not only regarding the innate value of hu-
man life at all stages of development, but also on the
risks inherent in abortion.
National Association of Pro Life Nurses
(NAPN) is a national non-profit nurses’ organization
with members in every state. NAPN unites nurses
who seek excellence in nurturing for all, including
mothers and the unborn. NAPN seeks to establish
and protect ethical values of the nursing profession.
Based on the destructive, post-fertilization effect
of “emergency contraception” and the coercive, uncon-
stitutional actions of Respondents, Amici urge this
Court to grant certiorari and reverse the lower court.
,
vw
SUMMARY OF ARGUMENT
The Affordable Care Act (ACA) requires that all
private insurance plans “provide coverage for and
shall not impose any cost sharing requirements for
. preventive care and screenings [for women].”
Respondents’ regulatory mandate implementing this
provision (the “Mandate”) requires that nearly all
private health insurance plans fully cover, without
* 42 U.S.C. §300gg-13.
5
co-pay, al] drugs and devices labeled by the Food and
Drug Administration (FDA) as “contraception.”
It is scientifically undisputed that a new human
organism begins at fertilization. See Part I, infra.
However, the FDA’s definition of “contraception” is
broad and includes drugs and devices with known
post-fertilization (i.e., life-ending) mechanisms of
action.’ See Part II, infra. As such, forcing employers
to provide coverage of such life-ending drugs violates
the conscientious beliefs of Petitioners and Americans
across the nation.
Respondents and the court below erroneously
ignored Petitioners’ documented objection to the life-
ending effect of such drugs. When the life-ending
mechanisms of action of “emergency contraception”
are understood, it is clear that forcing Petitioners to
pay for such drugs violates their rights and contra-
dicts this nation’s long-standing commitment to the
freedom of conscience. See Part III, infra.
La
-
° See Health Resources and Services Administration,
Women’s Preventive Services: Required Health Plan Coverage
Guidelines (Aug. 1, 2011), http://www.hrsa.gov/womensguidelines/.
All internet sites last visited October 8, 2013.
“ See FDA, Birth Control Guide (Aug. 2012), http://www.
co.burke.nc.us/vertical/sites/&7BDF44FA7A-21E3-466A-A30D-
00122906F160%7D/uploads/FDA_Birth_Control_Guide-_Updated_
August_2012.pdf.
6
ARGUMENT
I. It is Undisputed that New Human Organ-
ism is Created at Fertilization.
It is undisputed that a new, distinct human
organism comes into existence during the process of
fertilization.” Scientific literature states the following:
¢ “The fusion of sperm and egg mem-
branes initiates the life of a sexually
reproducing organism.”
° “The life cycle of mammals begins
when a sperm enters an egg.”
° “Fertilization is the process by which
male and female haploid gametes (sperm
and egg) unite to produce a genetically
distinct individual.”
¢ “The oviduct or Fallopian tube is the an-
atomical region where every new life
* See, e.g., Condic, When Does Human Life Begin? A Scien-
tific Perspective (The Westchester Institute for Ethics & the
Human Person Oct. 2008), http://bdfund.org/wordpress/wp-
content/uploads/2012/06/wi_whitepaper_life_print.pdf; George &
Tollefsen, EMBRYO 39 (2008).
* Marsden et al., Model systems for membrane fusion, CHEM.
Soc. Rev. 40(3):1572 (Mar. 2011) (emphasis added).
" Okada et al., A role for the elongator complex in zygotic
paternal genome demethylation, NATURE 463:554 (Jan. 28, 2010)
(emphasis added).
* Signorelli et al., Kinases, phosphatases and proteases
during sperm capacitation, CELL TISSUE RES. 349(3):765 (Mar.
20, 2012) (emphasis added).
7
begins in mammalian species. After a
long journey, the spermatozoa meet the
oocyte in the specific site of the oviduct
named ampulla, and fertilization takes
place.”
e “Fertilization — the fusion of gametes
to produce a new organism — is the
culmination of a multitude of intricately
regulated cellular processes.”
The government’s own definition attests to the
fact that life begins at fertilization. According to the
National Institutes of Health, “fertilization” is the
process of union of two gametes (i.e., ovum and
sperm) “whereby the somatic chromosome number is
restored and the development of a new tndividual is
initiated.”’’ Thus, in the context of human life, a new
individual human organism is initiated at the union
of ovum and sperm.
One textbook similarly explains:
Human development begins at fertilization
when a male gamete or sperm (spermatozo-
on) unites with a female gamete or oocyte
(ovum) to produce a single cell — a zygote.
* Coy et al., Roles of the oviduct in mammalian fertilization,
REPRODUCTION 144(6):649 (Oct. 1, 2012) (emphasis added).
° Marcello et al., Fertilization, ADv. Exp. BIOL. 757:321
(2013) (emphasis added).
“ National Institutes of Health, Medline Plus Merriam-
Webster Medical Dictionary (2013), http://www.merriam-
webster.com/medlineplus/fertilization (emphasis added).
8
This highly specialized, totipotent cell
marked the beginning of each of us as a
unique individual.”
Thus, a new human organism is created before
the developing embryo implants in the uterus — i.e.,
before that time at which some people consider a
woman “pregnant.”
Respondents and their amici have at times tried
to blur this distinct line with semantics of when
“pregnancy” begins. Relying on a definition of preg-
nancy that begins at “implantation,” Respondents
argue that “emergency contraceptives” are not
“abortifacients.” However, this is a nonresponse to the
concern that a drug or device can work after fertiliza-
tion, by blocking the implantation of a developing
human embryo. Such drugs might not end a “preg-
nancy” under Respondents’ definition, but it does end
the life of a unique human being. What Petitioners —
and Amici — conscientiously oppose is not simply the
ending of a “pregnancy,” but this ending of human
hfe.
II. Orugs and Devices Defined by the FDA as
“Emergency Contraception” Have Post-
Fertilization Mechanisms of Action.
Drugs and devices with post-fertilization (i.e.,
life-ending) mechanisms of action are included in the
'’* Moore & Persaud, THE DEVELOPING HUMAN 16 (7th ed.
2003) (emphasis added).
9
FDA definition of “contraception.” Even though these
drugs or devices may end a developing, distinct
human being’s life by preventing implantation, they
are labeled by the FDA as “contraception.” However,
referring to such drugs as “contraception” is deceiving
in that it infers only the prevention of fertilization.
But the FDA's criterion in categorizing a drug as
“contraception” is whether a drug can work by pre-
venting “pregnancy” — which the FDA defines as
beginning at “implantation,” not fertilization.” Thus,
drugs that interfere with implantation — which occurs
after fertilization and the creation of a new human
organism — are categorized as “contraception.”
Promoting the Mandate, Respondent Kathleen
Sebelius, Secretary of Health and Human Services
(HHS), admitted that the FDA’s definition of “contra-
ception” extends to blocking the implantation of an
already developing human embryo: “The Food and
Drug Administration has a category [of drugs) that
prevent fertilization and implantation. That’s really
the scientific definition.” * Respondent Sebelius stated
* For an overview of how the definition of “pregnancy” has
changed, see Gacek, Conceiving Pregnancy: U.S. Medical
Dictionaries and Their Definitions of Conception and Pregnancy,
FRC InsicHt PAPER (Apr. 2009), http://downloads.frc.org/EF/
EF09D12. pdf.
'* Wallace, Health and Human Services Secretary Kathleen
Sebelius Tells iVillage “Historic” New Guidelines Cover Contra-
ception, Not Abortion (Aug. 2, 2011), http://www.ivillage.com/
kathleen-sebelius-guidelines-cover-contraception-not-abortion/4-
a-369771 (emphasis added).
10
that under the new Mandate, “[t]hese covered pre-
scription drugs are specifically those that are de-
signed to prevent implantation.” Respondents know
and admit that these drugs work after fertilization.
In his most recent study on “emergency contra-
ception,” Dr. James Trussell, whose research on
“contraception” is cited by the FDA, states: “To make
an informed choice, women must know that [emer-
gency contraception pills] ... may at times inhibit
implantation. ...”° Although an advocate of “emer-
gency contraception,” Dr. Trussell believes that the
scientific difference between a drug that prevents
fertilization of an egg and one that may also prevent
implantation of a unique human organism is signifi-
cant enough that it must be disclosed to a potential
user. He has also stated that these post-fertilization
effects “should certainly be [acknowledged and]
celebrated, because without them the [contraceptive]
method would not provide as much benefit as they
do.” In other words, if fertilization has occurred, the
method provides “benefit” by preventing implanta-
tion.
'* Id. (emphasis added).
'° Trussell et al., Emergency Contraception: A Last Chance
to Prevent Unintended Pregnancy (Office of Population Research
at Princeton University June 2010).
Raymond et al., Embracing post-fertilisation methods of
family planning: a call to action, J. FAM. PLAN. REPROD. HEALTH
CARE (2013), http://press.psprings.co.uk/jfprhc/september/jfprhc
100702. pdf.
11
Strikingly, Dr. Warren Wallace, a physician at
Northwestern University Medical School who has
“prescribed emergency contraceptives,” and who was
called to testify in support of a law restricting rights
of conscience protections for the prescription of
“emergency contraception,” testified that “there is a
new unique human life before” the implantation of an
embryo.”
Moreover, a new drug classified by the FDA as
“emergency contraception” — Ulipristal Acetate (ella)
— is actually an abortion-inducing drug, because it
can kill an embryo after implantation.
An understanding of these _ post-fertilization
mechanisms of action, discussed below, demonstrates
that “emergency contraception” can end the life of an
already developing human organism.
A. Plan B can prevent implantation.
In 1999, the FDA approved the distribution of the
drug known as Plan B. Although called “emergency
contraception,” the FDA’s labeling acknowledges that
Plan B can prevent implantation of an already-
developing human embryo.” Further, the FDA states
on its website, “{ilf fertilization does occur, Plan B
* Transcript of Bench Trial at 91-92, 111, Morr-Fitz, Inc. v.
Quinn, 2012 IL App. (4th) 110398 (III. App. Ct. Sept. 20, 2012).
* Plan B Approved Labeling, http://www.accessdata.fda.gov/
drugsatfda_docs/nda/2006/021045s011_Plan_B PRNTLBL.pdf.
12
may prevent a fertilized egg from attaching to the
womb (implantation)."” The same explanation is
provided by Duramed Pharmaceuticals, the manufac-
turer of Plan B One-Step.”
Under Respondents’ Mandate, Petitioners are
forced to pay for Plan B, despite its life-ending effect
on already formed unique human organisms, in
violation of Petitioners’ genuinely held religious
beliefs.
B. Ulipristal Acetate (ella) can prevent
implantation or kill an implanted em-
bryo.
In 2010, the FDA approved the drug Ulipristal
Acetate (ella) as another “emergency contraceptive.”
Importantly, ella is not an “improved” version of Plan
B; instcad, the chemical make-up of ella is similar to
the abortion drug RU-486. Like RU-486, ella is a
selective progesterone receptor modulator (SPRM) —
“(tlhe mechanism of action of ulipristal (ella) in
human ovarian and endometrial tissue is identical to
*” FDA, FDA's Decision Regarding Plan B: Questions and
Answers (updated Apr. 30, 2009), http://www.fda.gov/cder/drug/
infopage/planB/planBQandA htm.
*” Duramed Pharmaceuticals, How does Plan B One-Step
work? (2010), http://www.planbonestep.com/faqs.aspx (explain-
ing that Plan B can work “by preventing attachment (implanta-
tion) to the uterus (womb)”).
13
that of its parent compound mifepristone.” This
means that though labeled as “contraception,” ella
works the same way as RU-486. By blocking proges-
terone — a hormone necessary to build and maintain
the uterine wal] during pregnancy — ella can cither
prevent a developing human embryo from implanting
in the uterus, or it can kill an implanted embryo by
essentially starving it to death. Put another way, ella
can abort a pregnancy, whether you define “pregnan-
cy” as beginning at fertilization or at implantation.”
Studies confirm that ella is harmful to a human
embryo.“ The FDA-approved labeling notes that ella
may “affect implantation” and contraindicates use of
ella in the case of known or suspected pregnancy. A
study funded by ella’s manufacturer explains that
SPRMs (drugs that block the hormone progesterone),
“including ulipristal acetate,” can “impair implanta-
tion.”” While the study theorizes that the dosage used
” Harrison & Mitroka, Defining Reality: The Potential Role
of Pharmacists in Assessing the Impact of Progesterone Receptor
Modulators and Misoprostol in Reproductive Health, 45 ANNALS
PHARMACOTHERAPY 115 (Jan. 2011).
*® See Gacek, Conceiving Pregnancy, supra.
*“ European Medicines Agency, Evaluation of Medicines for
Human Use: CHMP Assessment Report for Eliaone 16 (2009),
http://www.ema.europa.eu/docs/en_GB/document_library/EPAR_-
_Public_assessment_report/human/001027/WC500023673. pdf.
* ella Labeling Information (Aug. 13, 2010), http://www.
accessdata. fda gov/drugsatfda_docs/label/2010/022474s000Ib1_ pdf.
* Glasier et al., Ulipristal acetate versus levongestrel for
emergency contraception: a randomized non-tnferiority trial and
meta-analysis, 375 THE LANcET 555 (Jan. 2010).
14
in its trial “might be too low to inhibit implanta-
tion,” it states affirmatively that “an additional
postovulatory mechanism of action,” e.g., impairing
implantation, “cannot be excluded.”
Thus, ella has the potential to destroy a human
embryo. At the FDA advisory pane] meeting for ella,
Dr. Scott Emerson, a professor of Biostatistics at the
University of Washington and a panelist, raised the
point that the low pregnancy rate for women who
take ella four or five days after intercourse suggests
that the drug must have an “abortifacient” quality.”
* In the Glasier study, “follow-up was done 5-7 days after
expected menses. If menses had occurred and a pregnancy test
was negative, participation [in the study] ended. If menses had
not occurred, participants returned a week later.” Considering
that implantation must occur before menses, the study could not,
and did not attempt to, measure an impact on an embryo prior
to implantation or even shortly after implantation. ella was not
given to anyone who was known to already be pregnant (upon
enrollment participants were given a pregnancy test and
pregnant women were excluded from the study). The only
criterion for ella “working” was that a woman was not pregnant
in the end. Whether that was achieved through blocking implan-
tation, or killing the embryo after implantation, was not deter-
minable.
* See Transcript, Food and Drug Administration Center for
Drug Evaluation and Research (CDER), Advisory Committee for
Reproductive Health Drugs (June 17, 2010), http://www.fda.gov/
downloads/AdvisoryCommittees/Committees Meeting Materials/
Drugs/ReproductiveHealthDrugsAdvisoryCommittee/JCM218560.
pdf.
15
In short, ella goes beyond any other “contracep-
tive” approved by the FDA at the time of the Afforda-
ble Care Act’s enactment. By approving ella as
“contraception,” the FDA removed, not simply
blurred, the line between “contraception” and “abor-
tion” drugs because ella can work by ending an estab-
lished “pregnancy.”
Further, though “indicated” for contraceptive use,
mandated coverage for ella opens the door to the
funding (through health insurance) of purposeful off-
label abortion usage of the drug. Already, ella is
available for sale online, where a purchaser need only
fill out a questionnaire to obtain the drug, with no
physician or pharmacist to examine the patient,
explain the risks in person, or verify the identity and
intentions of the purchaser.
Thus, contrary to their religious and conscien-
tious beliefs, Petitioners are required to pay for ella —
an abortion-inducing drug — under Respondents’
mandate.
C. Intrauterine Devices may also prevent
implantation.
Copper Intrauterine Devices (IUDs) are heavily
promoted as another form of “emergency contracep-
tion.” IUDs can block the implantation of a human
16
embryo after fertilization.” In his study on “emergen-
cy contraceptives,” Dr. Trussell concludes that “[i]ts
very high effectiveness implies that emergency inser-
tion of a copper IUD must be able to prevent preg-
nancy after fertilization.”” Put another way, IUDs are
so effective because they do not just prevent concep-
tion ~ they can kill an already developing human
embryo.
Once again, under Respondents’ Mandate — and
contrary to their religious and conscientious beliefs —
Petitioners are required to pay for devices that can
kill human embryos.
III. The Mandate Violates Sincerely Held Reli-
gious Beliefs and Freedom of Conscience.
Petitioners are required under the Mandate to
provide insurance coverage for drugs and devices
with life-ending mechanisms of action, including
“emergency contraception.” Petitioners have made
clear their conscientious objection to paying for such
life-ending drugs. But if Petitioners do not comply
with Respondents’ Mandate, they will face potentially
* See Department of Health and Human Services, Birth
Control Methods (Nov. 21, 2011), http://www.womenshealth.gov/
publications/our-publications/fact-sheet/birth-control-methods. pdf
(“If fertilization does occur, the IUD keeps the fertilized egg from
implanting in the lining of the uterus.”).
* See Trussell, Emergency Contraception, supra (emphasis
added).
17
ruinous penalties.” Clearly, Petitioners are being
forced to choose between following their religious and
conscientious beliefs, and complying with the law.
It is exactly this type of coercive dichotomy that
violates the U.S. Constitution’s guarantee of freedom
of conscience.
Freedom of conscience is a fundamental right
that has been protected since the founding of our
Nation. Since that time, the paramount importance of
this historic right has been affirmed by our Founders,
by this Court, and by Congress. History, tradition,
and jurisprudence affirm that a person cannot be
forced to commit an act that is against his or her
moral, religious, or conscientious beliefs — including
payment for such an act — and this history, tradition,
and jurisprudence unequivocally support Petitioners
in this case.
A. Freedom of Conscience is a fundamen-
tal right affirmed by our Founders.
The First Amendment guarantees that Congress
shall make no law prohibiting the free exercise of
religion. U.S. CoNsT. amend. I. At the very root of
that promise is the guarantee that the government
* See 26 U.S.C. §4980H(a), (cX1); 26 U.S.C. §4980D(b); 29
U.S.C. §1132(aX 1B); 42 U.S.C. §300gg-22(bK2KC\i). See also
Cong. Research Serv., RL 7-5700 (asserting that the Secretary’s
authority to impose a $100 per day per individual penalty for
failure to provide coverage applies to insurers who violate the
“preventive care” provision).
18
cannot force a person to commit an act in violation
of his or her religion.”
The signers to the religion provisions of the First
Amendment were united in a desire to protect the
“liberty of conscience.” Having recently shed blood to
throw off a government which dictated and controlled
their religion and practices, guaranteeing freedom of
conscience was of utmost importance.”
Thomas Jefferson made it clear that freedom of
conscience is not to be subordinate to the government:
[Ojur rulers can have authority over such
natural rights only as we have submitted to
them. The rights of conscience we never
submitted, we could not submit. We are an-
swerable for them to our God.“
Jefferson also stated that no provision in the Consti-
tution “ought to be dearer to man than that which
protects the rights of conscience against the enter-
prises of civil authority.”
” See generally McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103 Harv. L. REv.
1409 (1990).
” The Founders often used the terms “conscience” and
“religion” synonymously. Berg, Free Exercise of Religion, in THE
HERITAGE GUIDE TO THE CONSTITUTION 310 (2005). Thus, adoption
of the “religion” clauses does not mean that the Founders were
ignoring freedom of conscience. The two were inextricably
intertwined.
“ Jefferson, Notes on Virginia (1785).
* Jefferson, Letter to New London Methodists (1809).
19
Jefferson also maintained that forcing a person
to contribute to — much like forcing Petitioners to pay
for — a cause to which he or she abhorred was “tyran-
nical.” This belief formed the basis of Jefferson’s bill
in Virginia, which prohibited the compelling of a man
to furnish money for the propagation of opinions to
which he was opposed.” Jefferson — who considered it
“tyrannical” to force a person to contribute monetarily
to a position he disagreed with — would likely be
aghast at a law requiring payment for a drug that is
conscientiously objectionable.
Likewise, James Madison, considered the Father
of the Bill of Rights, was also deeply concerned that
the freedom of conscience of Americans be protected.
Madison stated:
The Religion then of every man must be left
to the conviction and conscience of every
man; and it is the right of every man to exer-
cise it as these may dictate. This right is in
its nature an unalienable right.”
* Boyd, THE PAPERS OF THOMAS JEFFERSON 545 (1950).
*” Thus, not only is Jefferson the author of the Declaration
of Independence, but he is also the author of one of this Nation’s
first statutes granting the right to refuse to participate or to act
because of conscientious convictions. Jefferson was so proud of
this accomplishment that he had “Author of the ... Statute of
Virginia Religious Freedom. .. .” etched on his gravestone.
* Madison, Memorial and Remonstrance Against Religious
Assessments 7 15 (emphasis added).
20
In fact, Madison described the conscience as “the
most sacred of all property.”” Madison also amended
the Virginia Declaration of Rights to state that all
men are entitled to full and free exercise of religion,
“according to the dictates of conscience.”
Madison understood that if man cannot be loyal
to himself, to his conscience, then a government
cannot expect him to be loyal to less compelling
obligations, statutes, or professional duties. If the
government demands that he betray his conscience,
the government has eliminated the only moral basis
for obeying any law. Madison considered it “the
particular glory of this country, to have secured the
rights of conscience which in other nations are least
understood or most strangely violated.”
President George Washington maintained that
“the establishment of Civil and Religious Liberty was
the Motive that induced me to the field of battle,” and
he advised Americans to “labor to keep alive in your
breast that little spark of celestial fire called con-
science.™' President Washington also maintained that
the government should accommodate religious per-
sons:
* Milton, THE QUOTABLE FOUNDING FATHERS: A TREASURY OF
2,500 WISE AND WITTY QUOTATIONS 36-37 (2005).
*’ Madison, Speech Delivered in Congress (Dec. 22, 1790).
“ Novak & Novak, WASHINGTON’s GOD 111 (2006); Milton,
supra.
21
The conscientious scruples of all men should
be treated with great delicacy and tender-
ness: and it is my wish and desire, that the
laws may always be extensively accommo-
dated to them, as a due regard for the protec-
tion and essential! interests of the nation may
justify and permit.”
Another Founder who would serve as President,
John Adams, stated that “no subject shall be hurt,
molested, or restrained, in his person, liberty, or
estate, for worshipping God in the manner most
agreeable to the dictates of his own conscience.”
Patriot leader Samuel Adams wrote that the liberty of
conscience is an original right.“
Forcing Petitioners to pay for drugs and devices
to which they are conscientiously opposed eviscerates
the very purpose for which this Nation was founded
and formed. As Thomas Jefferson charged us:
[W]e are bound, you, I, every one, to make
common cause, even with error itself, to
maintain the common right of freedom of
conscience. We ought with one heart and one
hand hew down the daring and dangerous
“ Washington, Letter to the Religious Society Called
Quakers (1789).
“ Adams, A Declaration of the Rights of the Inhabitants of
the Commonwealth of Massachusetts, in REPORT FROM COMMIT-
TEE BEFORE THE CONVENTION OF DELEGATES (1779).
“ Cushing, THE WrITINGS OF SAMUEL ADAMS 350-59 (vol. II,
1906).
22
efforts of those who would seduce the public
opinion to substitute itself into ... tyranny
over religious faith... .”*
B. Freedom of Conscience is a fundamen-
tal right affirmed this Court.
This Court has consistently ruled in favor of
protecting the freedom of conscience of every Ameri-
can. “Freedom of conscience” is referenced explicitly
throughout Supreme Court jurisprudence. See, e.g.,
Baird v. State Bar of Ariz., 401 U.S. 1, 6 (1971) (“The
First Amendment gives freedom of mind the same
security as freedom of conscience.”); Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 n.2
(1969) (referencing “constitutionally protected free-
dom of conscience”).
Further, the Court has held that laws cannot
abridge expressions protected by the First Amend-
ment simply because a corporation is the source of
protected conduct. See Citizens United v. Fed. Elec-
tion Comm’n, 558 U.S. 310 (2010); First Natl Bank of
Boston v. Bellotti, 435 U.S. 765 (1978).
This Court has stated that “/f/reedom of con-
science ... cannot be restricted by law.” Cantwell v.
Conn., 310 U.S. 296, 303 (1940) (emphasis added).
While the “freedom to believe” is absolute, the
“ Jefferson, Letter to Edward Dowse, Esq. (Apr. 19, 1803)
(emphasis added).
23
“freedom to act” is not; however, “in every case,”
regulations on the freedom to act cannot “unduly
infringe the protected freedom.” Jd. at 303-04.
In the 1940s, the Supreme Court considered
regulations requiring public school students to recite
the pledge to the American flag, ultimately vindicat-
ing the students’ freedom of conscience. Initially the
Court ruled against a group of Jehovah’s Witnesses
who sought to have their children exempted from
reciting the pledge. Minersville Sch. Dist. v. Gobitis,
310 U.S. 586 (1940). However, in just three short
years, the Supreme Court reversed this decision. In
West Virginia State Board of Education v. Barnette,
the Court stated:
If there is any fixed star in our constitutional
constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other mat-
ters of opinion or force citizens to confess by
word or act their faith therein. ... [L]ocal
authorities {may not] transcend[] constitu-
tional limitations on their power and in-
vade[] the sphere of intellect and spirit
“ Even though Gobditis was ultimately decided incorrectly,
Justice Felix Frankfurter, writing the majority opinion, recog-
nized that a balance must be struck between the interest of the
schools and the interest of the students so as to “prevent either
from destroying the other.” Gobditis, 310 U.S. at 594. Nonethe-
less, because the liberty of conscience is so fundamental, “every
possible leeway” must be given to the claims of religious faith.
Id.
24
which it is the purpose of the First Amend-
ment to our Constitution to reserve from all
official control.
Barnette, 319 U.S. 624, 642 (1943) (emphasis in
original). The Court also stated, “[F]reedom to differ
is not limited to things that do not matter much....
The test of its substance is the right to differ as to
things that touch the heart of the existing order.” Jd.“
Based upon these principles, this Court ruled it
unconstitutional to force public school children to
perform an act that was against their religious be-
hefs.
Barnette has been affirmed on numerous occa-
sions, including in Planned Parenthood v. Casey, 505
U.S. 833 (1992), where the Supreme Court stated:
It is conventional constitutional doctrine that
where reasonable people disagree the gov-
ernment can adopt one position or the other.
That theorem, however, assumes a state of af-
fairs in which the choice does not intrude up-
on a protected liberty. Thus, while some
people might disagree about whether or not
the flag should be saluted, or disagree about
“ “The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts.
One’s .. freedom of worship and assembly, and other funda-
mental rights may not be submitted to vote; they depend on the
outcome of no elections.” Barnette, 319 U.S. at 638 (emphasis in
original).
25
the proposition that it may not be defiled, we
have ruled that a State may not compel or en-
force one view or the other.
Id. at 851 (citing Barnette, 319 U.S. 624) (other
citations omitted) (emphasis added).
In the context of an obligatory flag salute and
pledge, this Court has established the principle that
to force parents and children to choose between their
religious beliefs and their public education is a clear
violation of their First Amendment rights. Likewise,
forcing Petitioners to choose between adhering to
their religious, moral, or conscientious convictions
and the potential of heavy fines — or going out of
business altogether — and complying with the Man-
date is an unconstitutional exercise of state power.
In the 1960s and 1970s, this Court continued to
protect Americans’ freedom of conscience. In a notable
example, the Court protected men who were conscien-
tiously opposed to war. Section 6(j) of the Universal
Military Training and Service Act contained a con-
science clause exempting men from the draft who
were conscientiously opposed to military service
because of “religious training and belief.”° In United
States v. Seeger and Welsh v. United States, the
“ Section 6(j) does not embody a “new” idea. Early colonial
charters and state constitutions spoke of freedom of conscience
as a right, and during the Revolutionary War, many states
granted exemptions from conscription to Quakers, Mennonites,
and others with religious beliefs against war.
26
Supreme Court extended draft exemptions to “all
those whose consciences, spurred by deeply held
moral, ethical, or religious beliefs, would give them no
rest or peace if they allowed themselves to become
part of an instrument of war.” Welsh, 398 U.S. 333,
344 (1970) (affirming Seeger, 380 U.S. 163 (1965)).
Welsh acknowledged that §6(j) protected persons
with “intensely personal” convictions — even when
other persons found those convictions “incomprehen-
sible” or “incorrect.” Welsh, 398 U.S. at 339. Seeger
and Welsh “held deep conscientious scruples against
taking part in wars where people were killed. Both
strongly believed that killing in war was wrong,
unethical, and immoral, and their consciences forbade
them to take part in such an evil practice.” Jd. at 337.
Important here is Welsh’s statement:
I believe that human life is valuable in and
of itself; in its living; therefore I will not in-
jure or kill another human being.... I can-
not, therefore conscientiously comply with
the Government’s insistence that I assume
duties which I feel are immoral and totally
repugnant.
Id. at 343.
The holdings in these two cases demonstrate a
strong commitment by this Court to protect freedom
of conscience. Like Welsh, Petitioners believe that
human life is valuable — at all stages and in all situa-
tions. They cannot kill another human being, but, as
discussed supra, “emergency contraception” has the
27
potential to terminate developing human embryos.
Being forced to pay for the termination of a human
life is just as objectionable as being forced to partici-
pate in the termination of human life in war. Paying
for the act is participation in the act.
C. Freedom of Conscience is a fundamen-
tal right affirmed by Congress.
Congress likewise has considered and passed
numerous measures expressing the federal govern-
ment’s commitment to protecting the freedom of
conscience.
Congress addressed the issue of conscience just
weeks after this Court decided Roe v. Wade. In 1973,
Congress passed the first of the Church Amend-
ments.” The original and subsequent Church
Amendments protect healthcare providers from
discrimination by recipients of U.S. Department of
Health and Human Services (HHS) funds on the
basis of their objection, because of religious belief or
moral conviction, to performing or participating in
any lawful health service or research activity.
In 1996, Section 245 of the Public Health Service
Act, known as the Coats Amendment, was enacted to
prohibit the federal government and state or local
governments that receive federal financial assis-
tance from discriminating against individual and
* 42 U.S.C. §300a-7.
28
institutional healthcare providers, including partici-
pants in medical training programs, who refused to,
among other things, receive training in abortions;
require or provide such training; perform abortions;
or provide referrals or make arrangements for such
training or abortions.” The measure was prompted by
a 1995 proposal from the Accreditation Council for
Graduate Medical Education to mandate abortion
training in all obstetrics and gynecology residency
programs.
The most recent federal conscience protection,
the Hyde-Weldon Amendment, was first enacted in
2005 and provides that no federal, state, or local
government agency or program that receives funds
under the Labor, Health and Human Services
(LHHS) appropriations bill may discriminate against
a healthcare provider because the provider refuses to
provide, pay for, provide coverage of, or refer for
abortion.” The Amendment is subject to annual
renewal and has survived multiple legal challenges
brought by pro-abortion groups.”
” 42 U.S.C. §238n.
" Pub. L. No. 110-161, §508(d), 121 Stat. 1844, 2209 (2007).
“ Many similar conscience provisions related to federal
funding have been passed over the last 45 years. See, e.g., 42
U.S.C. §1395w-22(jX3B) (1997); 42 U.S.C. §300a-7(e) (1979); 42
U.S.C. §300a-7(cX2), (d) (1974); 42 U.S.C. §300a-7(b), (cX1)
(1973); 48 C.F_R. §1609.7001(cX7) (1998); Pub. L. No. 108-25, 117
Stat. 711, 733 (2008).
29
Congress has also acted to provide specific con-
science protections in the provision of contraceptives.
For example, in 2000 Congress passed a law requir-
ing the District of Columbia to include a conscience
clause protecting religious beliefs and moral convic-
tions in any contraceptive mandate.” Similarly, in
1999 Congress prohibited health plans participating
in the federal employees’ benefits program from
discriminating against individuals who refuse to
prescribe contraceptives.”
These laws highlight the commitment of the
American people to protect individuals and employers
from mandates or other requirements forcing them to
violate their consciences and/or religious and moral
beliefs, and demonstrate that the Respondents’ Man-
date ignores the longstanding national commitment
to protect the freedom of conscience.”
,%
4
“ See Pub. L. No. 108-7, 117 Stat. 11, 126-27 (2000).
“ See Pub. L. No. 108-7, 117 Stat. 11, 472 (1999).
* Respondents’ actions also run contrary to the laws and
clear intent of the vast majority of states that protect the
freedom of conscience. At least 47 states provide some degree of
statutory protection to healthcare providers who conscientiously
object to certain procedures. See Rights of Conscience Overview,
in DEFENDING LIFE 2013: DECONSTRUCTING ROE: ABORTION’S
NEGATIVE IMPACT ON WOMEN (2013), http://www.aul.org/wp-
content/uploads/2013/04/06-Freedom-of-Conscience. pdf.
30
CONCLUSION
It is undisputed that a new human organism is
created at fertilization. Being forced to pay for drugs
that can end a human life after fertilization amounts
to forced participation in the act itself. Such a coer-
cive policy runs contrary to the history, tradition,
and jurisprudence of this Nation and violates the
Petitioners’ freedom of conscience. This Court should
grant certiorari and reverse the lower court.
Respectfully submitted,
DENISE M. BURKE
MAILEE R. SMITH
Counsel of Record
ANNA R. FRANZONELLO
Mary E. HARNED
WILLIAM L. SAUNDERS
AMERICANS UNITED FOR LIFE
655 15th St. NW, Suite 410
Washington, D.C. 20005
Telephone: 202-289-1478
Facsimile: 202-289-1473
Email: Mailee.Smith@AUL.org
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.