When Religious Belief Becomes Scientific Opinion: Burwell V. Hobby Lobby and the Unraveling of Federal Rule 702

By Mandell, Meredith Rachel | Northwestern Journal of Law and Social Policy, January 1, 2016 | Go to article overview

When Religious Belief Becomes Scientific Opinion: Burwell V. Hobby Lobby and the Unraveling of Federal Rule 702


Mandell, Meredith Rachel, Northwestern Journal of Law and Social Policy


For over 20 years, the federal courts have adhered to a number of rules designed to ensure that only valid and reliable science forms the basis for court decisions. The seminal case is Daubert v. Merrell Dow Pharmaceuticals,2 in which the U.S. Supreme Court set down the core standards for admissibility of scientific opinions. Those standards later became embodied in Federal Rule of Evidence 702, which reads:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.3

There have been thousands of federal court decisions involving the Daubert/Rule 702 standards,4 and many state courts now follow the same standards.5 A principal goal of Rule 702 is to guard against the danger of "junk science"6 tainting decisions that depend on scientific or other specialized knowledge.7 Yet, in spite of Rule 702 and its 20-year history, a recent and highly publicized legal decision, which rested on faulty scientific beliefs, was made without the benefit of a Rule 702 analysis.

The case is Burwell v. Hobby Lobby,8 in which the Supreme Court held that the contraceptive mandate, a regulation promulgated by the Department of Health and Human Services under the Affordable Care Act (the Act),9 substantially burdened the employers' exercise of religion under the Religious Freedom Restoration Act of 1993 (RFRA).10 The mandate substantially burdened the Hobby Lobby employers' religious beliefs because it required the employers to provide access to four specific contraceptives which they believed were abortifacients,11 and the Department of Health and Human Services had not proven the mandate was the "least restrictive means" of furthering a compelling governmental interest.12

The Supreme Court made a critical assumption that the four contraceptives at issue were, in fact, abortifacients. But the Court received no scientific evidence, nor did any court below, for the proposition that the challenged contraceptives were actually tantamount to abortions. In essence, the Supreme Court deferred not only to the employers' religious beliefs that abortion is wrong, but also to their erroneous scientific beliefs about whether any of four specific contraceptives constitutes an "abortion."

Such deference became the basis for the Court's decision that the four particular types of contraceptives need not be funded by the Hobby Lobby employers. Importantly, neither the Hobby Lobby trial courts13 nor the Hobby Lobby appellate courts14 required a Rule 702 review of the scientific opinions that were the basis Hobby Lobby plaintiffs' position.

The lack of Rule 702 review begs the question: in light of more than 20 years of federal jurisprudence setting the modern standards for the use of reliable and valid science in federal litigation, how can the Supreme Court justify its reliance on a religious belief rather than science for its conclusion about what what constitutes an abortion? In essence, the Hobby Lobby court permitted junk science to trump access to contraceptives. The decision is all the more troubling in light of the long-established constitutional right of access to contraceptives.15

In this paper, Part I will review the reasons why Rule 702 exists and what standards are imposed on the admissibility of scientific opinions; Part II will review the decision in Hobby Lobby and the purported science involved in the case; Part III will review the lack of Rule 702 review by the Hobby Lobby lower courts; Part IV will review the scientific debate concerning contraceptives as abortifacients; Part V will consider the admissibility of potentially conflicting scientific opinions in Hobby Lobby; and Part VI will examine how scientific evidence could have changed the outcome of the case. …

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