Must Hobby Lobby See Attempts to Conceive as a Crime?

The owners of Hobby Lobby claim to oppose not only the termination of pregnancy in the technical sense, but also anything that impedes implantation of a fertilized egg. (In the technical sense, prior to implantation no pregnancy has yet been established.)

Hobby Lobby's position on this issue appears to be rooted in a certain view about the fertilized egg: At the moment of fertilization, it becomes a person with a person's rights--including the right to life.

Now there's more to their argument than that--and that something more should make those with a vaguely libertarian bent rather uneasy. After all, what does a right to life consist in? If I will die unless you let me into your home, does my right to life entail that if you lock me out you have committed homicide? Hobby Lobby would presumably have to say something along these lines if they want to insist that there is something seriously wrong with preventing implantation--which is a fair bit like denying me access to your home when I need such access in order to survive.

But let's grant all of this. Let's assume that the fertilized egg has a person's right to life, and that a person's right to life isn't limited to a right not to be killed but also puts demands on others: If I have a right to life and I need to use your body in order to survive, then you have a duty to make sure that I can gain access to it--and if you take steps to block me from gaining access, that's seriously wrong.

Let's assume all of that is true. If we adopt such a perspective, what ought we to think about a practice which results predictably in the deaths of more than half of all fertilized eggs that are involved in the practice? If you know, when you engage in a practice, that there is a good chance that a person will die--let's say a 50-60% chance--would it be permissible for you to engage in the practice?

Let's suppose that you have a worthy goal: You want to become a parent. Imagine a dystopian world where the only legal way to become a parent is to put in a request with a breeding factory--one which is fully automated, using artificial wombs and robotic childbirth and infant nursing machines. If you put in a request, the breeding factory goes to work--gestating a baby until viability and then evaluating the newborn for a period of time (a few weeks, say).Then the facility either delivers the newborn to you--or anesthetizes the infant and dumps it into a midden where it dies quickly from suffocation. Sometimes this happens because the evaluation protocols have judged the baby insufficiently healthy. Sometimes it happens inexplicably--it's just something the breeding factory does.

In fact, let us suppose it does it 50-60% of the time. More often than not, when you put in a request for a baby, the machine produces a baby and then dumps the living three-week-old into a midden heap to die.

Would it be morally problematic for you to make use of such a breeding facility? Most of us, I think, would say yes. After all, babies have a significant moral standing and a robust right to life--and making use of this facility entails that, on average, for every two beings with such moral significance who come into the world, one of them is automatically tossed away and left to die.

If a fertilized egg, pre-implantation, has that kind of moral standing, then there's a significant problem. Because fertilized eggs only successfully implant 40-50% of the time. The rest of the time, they are washed out of the uterus and die. If we really want to give to fertilized eggs the kind of moral standing that we give to three-week-old babies, then don't we need to regard every case of a couple trying to conceive as having the same problematic moral status that we attach to the parents putting in a request with the breeding factory?

Now let's modify our dystopian scenario just a bit. Let us suppose that all human beings are sterilized at birth, but they are implanted with a device that detects if and when they are engaged in sexual activity. Instead of putting in a request for a baby, in this future world you just have to start being sexually active--and a request is sent automatically. The detection device is imperfect, so the request only goes once in awhile, and is more likely to go out during full moons. To be sure the message is sent, you need to have sex fairly consistently, especially around the time of the full moon.

Now compare two couples who are sexually active in this dystopian world. Bill and Mary want a baby and are urgently trying to get the message through to the factory--and hence engaged in a practice which has a 50-60% chance of throwing a baby onto the midden heap. Carl and Nancy, however, have found a way to disable the transmitter so that it doesn't put in any requests for babies. But suppose that the disabling technique is not quite perfect. There is a 0.5% chance, say, that a request will go out anyway after a year of being sexually active. And when that happens, something about the disabling technique increases the chances that the baby produced will be thrown on the midden heap. Let's say the chance is 90%. Still, since the chance of a request going out is only 0.5%, the chance that Carl and Nancy' activity will send a child to the midden heap is 0.45%.

So, Bill and Mary are engaged in an activity that has a 50-60% of resulting in a living baby being thrown onto a midden heap to die. Carl and Nancy are engaged in an activity that has a 0.45% of producing this result. Who is morally better? Which choice is more problematic, morally?

Numbers aren't everything, of course, so the morality of their respective choices may not be simply a matter of consulting the numbers here. And in this dystopian world, taking he risks that Bill and Mary take is the only way for new children to come into the world. But something should be pretty clear: It's not obvious that Bill and Mary are doing nothing wrong while Carl and Nancy are engaged in moral wrong-doing. There's at least some reason to think that Carl and Nancy's behavior is less troubling, morally.

But if a fertilized egg, prior to implantation, has the same moral status as a three-week-old newborn baby, the couple trying to have a baby is like Bill and Mary, while the couple using an IUD is like Carl and Nancy. That is, if we adopt a key assumption made by advocates for Hobby Lobby's position on contraception, the couple trying to have a baby is engaged in activity that is at best morally suspect--and arguably more wrong, morally, than the couple that uses the IUD. Their key premise about the moral status of the fertilized egg can hardly justify the position which they in fact seem to take--namely, one in which a couple trying to conceive is doing something lovely, while the couple using the IUD is engaged in a serious moral wrong.

Note that most of these problems go away if we think that baby-like moral standing emerges at some point after implantation--that is, at some point after a pregnancy has started in the technical sense.

All of this leads me to conclude that there is something seriously muddled about the Hobby Lobby position. Am I missing something?