# Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2013 - **Citation:** 571 U.S. 1067 ## Text No. 13-356 a ok -¥ ~ * 7:4, n ——_ ————,, — 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A06. Public record. Not legal advice.