SCOTUS, Science, Conception, and Some Facts about the Four Contraceptives at the Center of the Hobby Lobby Case

HobbyLobbySubmitted by Elaine Magliaro, Weekend Contributor

Back in March of this year—during oral arguments in the Hobby Lobby case—Sahil Kapur (Talking Points Memo) said he thought that the conservative Supreme Court Justices “appeared broadly ready to rule against the birth control mandate under Obamacare.” He added that “their line of questioning indicated they may have a majority to do it.” Kapur reported that Chief Justice Roberts and Justices Scalia and Alito “expressed no sympathy for the regulation while appearing concerned for the Christian business owners of Hobby Lobby and Conestoga Wood who said the contraceptive mandate violates their religious liberty and fails strict scrutiny standards under the 1993 Religious Freedom Restoration Act (RFRA).”

During oral arguments, Justice Scalia said, “You’re talking about, what, three or four birth controls, not all of them, just those that are abortifacient. That’s not terribly expensive stuff, is it?”

There are a couple of things I think Justice Scalia should know. First, the four contraceptive methods that Hobby Lobby objected to paying for—Plan B, Ella, and two intrauterine devices—are not abortifacients. They do not prevent the implantation of a fertilized egg into the uterus—which the owners of Hobby Lobby consider to be abortion. Instead—according to the Food and Drug Administration—the four contraceptive methods in question prevent fertilization of an egg. Second, the cost of intrauterine devices can be quite considerable—especially to a woman working for minimum wage or for a company like Hobby Lobby.

Plan B is also known as the morning-after pill. Ella, the week-after pill, actually works for just five days after unprotected sex. Both of these drugs are classified by the Food and Drug Administration as contraceptives. Neither is the same as the abortion drug RU486, or Mifeprex—which isn’t considered a contraceptive and isn’t covered by the new insurance requirements.

Plan B, Ella and the Cost of IUD’s

Susan Woods, a professor of health policy at George Washington University and a former assistant commissioner for women’s health at the FDA, has been frustrated by the constant references to Plan B and Ella as abortion-causing pills. She said, “It is not only factually incorrect, it is downright misleading. These products are not abortifacients. And their only connection to abortion is that they can prevent the need for one.”

Jamie Manson (National Catholic Reporter) said that the “reality is that there is overwhelming scientific evidence that the IUD and Plan B work only as contraceptives. Since Ella is new to the market, it has not been studied as extensively. But as of now, there is no scientific proof that Ella acts as an abortifacient, either.” He added that there is only one drug approved to induce abortion—RU-486, which is not on the FDA’s list of approved contraception. He continued, “It is available only by prescription and no employer is forced to pay for it as part of an employee health plan.”

Manson said that it’s important to understand the biology of conception in order to “understand why scientists believe that the IUD, Plan B and Ella are not abortifacients.”


…In order for a woman to become pregnant after sexual intercourse, her ovaries must release an egg (ovulation). Sperm can remain viable inside her reproductive tract for five days. Therefore, if intercourse takes place up to five days before ovulation or within two days after, both sperm and egg are viable and the egg cell can be fertilized.

Now, just because an egg is fertilized doesn’t necessarily mean that it will develop into an embryo. For that to happen, the fertilized egg must be implanted into the endometrium that lines the uterus. Implantation happens seven days after fertilization, if it happens at all. Scientists estimate that, at a minimum, two-thirds of fertilized eggs fail to implant. Some scientists estimate that the number may even be as high as 80 percent, according to Discover Magazine.

For this reason, according to the medical definition, a woman is not considered pregnant until the developing embryo successfully implants the lining of the uterus.

Regarding the cost of an IUD (New York Times):

The cost of an IUD, one of the most effective forms of birth control, is considerable. It requires a visit to the doctor, and a procedure to have the device put in place. Medical exams, insertion, and follow-up visits can run upward of $1,000. Without insurance coverage, it’s likely that many women will be unable to use them.

Writing for SCOTUSblog, Dawn Johnsen, a professor of law at Indiana University School of Law-Bloomington, said the following:

Hormonal IUDs can be forty-five times more effective than oral contraceptives and ninety times more effective than male condoms in preventing pregnancy, based on typical use.  Finally, cost concerns often drive women away from a preferred method to less effective methods.  Almost one-third of women report that they would change their choice of contraceptive method if cost were not a factor.  That’s tens of millions of women.

Religious Beliefs Trump Scientific Research in Hobby Lobby Ruling

In July, Kapur wrote about the Hobby Lobby case again following the Court’s ruling. He said that when Supreme Court Justices had suggested back in March “that certain forms of birth control were abortion-inducing, nobody stood up to point out that the claim by Hobby Lobby lacked support within the medical community.” He added that “it came as little surprise that the 5-4 ruling against the Obamacare contraception mandate ignored the scientific research about whether those contraceptives actually cause abortion. The religious owners of Hobby Lobby and Conestoga Wood believed it, and that was enough.” Justice Alito wrote for the Court, “If the owners comply with the HHS mandate, they believe they will be facilitating abortions”—“decreeing it a ‘substantial burden’ on free exercise of religion and thus in violation of the Religious Freedom Restoration Act.” He also wrote, “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

After the Hobby Lobby ruling, Erika Eichelberger and Molly Redden of Mother Jones pointed out that the five justices who ruled in favor of Hobby Lobby weren’t just overruling an Obamacare regulation, they were also overruling science.

But—as Kapur noted in his TPM article in July—“the justices weren’t legally required to consider the science. Quite the opposite: RFRA, a statute passed by a Democratic Congress and signed by President Bill Clinton in 1993, grants special treatment under the law to religious people regardless of whether their beliefs are substantiated by evidence.”

On a segment of The Daily Show back in March, John Stewart said, “So let me get this straight.Corporations aren’t just people, they’re ill-informed people. Whose factually incorrect beliefs must be upheld because they sincerely believe them anyway.”

It isn’t just the Hobby Lobby folks and some Supreme Court Justices who appear ill-informed about certain contraceptives. After the Hobby Lobby ruling, Katie McDonough (Salon) wrote that some of the right’s talking points on Hobby Lobby were wrong and showed a misunderstanding of health insurance and sex.


On Fox News, Bill O’Reilly and Megyn Kelly tried to see who could out-ignorant the other by shouting misinformation about how birth control works and the supposedly narrow scope of the ruling. Also on Fox News… Brit Hume concluded — with zero supporting medical evidence — that the four forms of contraception no longer covered by Hobby Lobby “amounted to abortion.”

While over at the National Review Online, editor Jonah Goldberg wrote that Hobby Lobby “objected to paying for what it considers to be abortifacients, which don’t prevent a pregnancy but terminate one. The pro-abortion-rights lobby can argue that ‘abortion’ and ‘birth control’ are synonymous terms, but that doesn’t make it true.” I’d respond to Goldberg by saying that the owners of Hobby Lobby may believe that the four contraceptives that it objected to are abortifacients—but that doesn’t make it true.

After returning from a two-week hiatus from The Daily Show on July 14th, Jon Stewart did a segment on the Hobby Lobby ruling. He found it interesting that the owners of Hobby Lobby consider Plan B to be an abortifacient—even though the American College of Obstetricians and Gynecologists say it isn’t. “But what would they know about vaginas?” said Stewart. “Compared to a corporation that sells foam cones and glitter.”


Morning-After Pills Don’t Cause Abortion, Studies Say (NPR)

What an abortifacient is — and what it isn’t (National Catholic Reporter)

Science Was Irrelevant In Hobby Lobby And That’s Congress’s Fault (Talking Points Memo)

Conservative Justices Appear Ready To Strike Birth Control Mandate (Talking Points Memo)

Jonah Goldberg’s sexual tumult: The right doesn’t get how birth control works: The right’s lame talking points on Hobby Lobby are wrong — and show a misunderstanding of health insurance and sex (Salon)

5 myths about the Hobby Lobby case, debunked (MSNBC)

How Hobby Lobby Ruling Could Limit Access to Birth Control (New York Times)

In Hobby Lobby Case, the Supreme Court Chooses Religion Over Science: Five justices ignore science in their ruling that companies are not required to provide contraception under Obamacare. (Mother Jones)

What Clarence Thomas and Antonin Scalia don’t understand about contraception: An IUD is a month’s pay for a woman earning minimum wage. The legal argument against Hobby Lobby is a human one (Salon/SCOTUSblog)


129 thoughts on “SCOTUS, Science, Conception, and Some Facts about the Four Contraceptives at the Center of the Hobby Lobby Case”

  1. “Should one person’s religious beliefs trump another person’s?”

    Elaine, absolutely not. So now you might begin to understand the many consequences of making oneself dependent on the rule of men over the rule of law. Sometimes the law is used in your favor and sometimes it’s not. When you support using your government for purposes that necessarily infringe the rights of a certain class of people then you have to accept the fact that government can also be used against you. The IRS abuses are just one example. Government was never supposed to be a weapon against its own citizens but that’s what it’s become.

  2. Eden Foods’ Hobby Lobby-esque Birth Control Fight Sparks Boycott
    The Huffington Post
    By Alexander C. Kaufman
    Posted: 07/18/2014

    Spurred on by the Supreme Court’s recent Hobby Lobby ruling, Eden Foods CEO Michael Potter has revived a March 2013 case to nix coverage of all birth control from his employees’ healthcare plans. In turn, many shoppers have soured on the organic food giant and are boycotting its products.

    “In accordance with his Catholic faith, Potter believes that any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or means — including abortifacients and contraception — is wrong,” Erin Mersino, Eden’s lawyer from the conservative Thomas More Law Center, said in a statement sent to The Huffington Post on Friday.

    Last month, Hobby Lobby won the right to shirk a clause in the Affordable Care Act that requires employers who provide health insurance to cover all Food and Drug Administration-approved forms of birth control. The company, which is owned by a family of evangelical Christians, opposed emergency contraceptives such as “morning after” pills Plan B and Ella and intrauterine devices, which it believes are tantamount to abortion.

    Eden’s founder and chief executive goes one step further, opposing all birth control.

  3. samantha,

    The decision in the Hobby Lobby case isn’t just about women. I don’t know who said that it was. It’s also about corporate personhood and the court ruling that for-profit corporations can have religious beliefs. It’s about this not being a “narrow” ruling–as Alito had claimed–and the precedent that it has set.


    Supreme Court Broadens Hobby Lobby Ruling to All Forms of Birth Control
    So much for Justice Alito’s “narrow” opinion.
    —By Patrick Caldwell
    | Wed Jul. 2, 2014

    Less than a day after the United States Supreme Court issued its divisive ruling on Burwell v. Hobby Lobby, it has already begun to toss aside the supposedly narrow interpretation of the decision. On Tuesday, the Supremes ordered lower courts to rehear any cases where companies had sought to deny coverage for any type of contraception, not just the specific types Hobby Lobby was opposed to.

    The Affordable Care Act had listed 20 forms of contraception that had to be covered as preventive services. But Hobby Lobby, a craft supply chain, claimed that Plan B, Ella, and two types of IUD were abortifacients that violated the owners’ religious principles. The science was against Hobby Lobby—these contraceptives do not prevent implantation of a fertilized egg and are not considered abortifacients in the medical world—but the conservative majority bought Hobby Lobby’s argument that it should be exempted from the law.

    Justice Samuel Alito, who wrote the the 5-4 opinion, used numerous qualifiers in an attempt to limit its scope, but a series of orders released by the court Tuesday contradict any narrow interpretation of the ruling.

    The court vacated two decisions by the US Court of Appeals for the Sixth Circuit—Autocam Corp. v. Burwell and Eden Foods v. Burwell—and commanded the appeals court to rehear the cases in light of the Hobby Lobby decision. In both instances the Sixth Circuit had rejected requests from Catholic-owned businesses that sought to exempt the companies from offering insurance that covered any of the 20 mandated forms of birth control. The Supreme Court also compelled the US Court of Appeals for the District of Columbia to reopen a similar case, Gilardi v. Department of Health & Human Services. “With Tuesday’s orders,” wrote The Nation’s Zoë Carpenter, “the conservative majority has effectively endorsed the idea that religious objections to insurance that covers any form of preventative healthcare for women have merit.”

    Justice Ruth Bader Ginsburg predicted this outcome in her dissent, noting that the logic of Alito’s decision went far beyond the limited scope he initially claimed. “The court, I fear, has ventured into a minefield,” Ginsburg wrote.

    No matter what Alito and other justices may claim, court decisions set precedent and offer opportunities for lower courts to expand the logic of the initial case. (See Bush v. Gore.) The immediate turnaround to broaden the scope of Hobby Lobby won’t do anything to dispel fears that the case has opened the way for a broad swath of businesses to object to any government regulation they dislike based on the religious whims of corporate owners.


    Corporations trump people in Supreme Court’s Hobby Lobby decision [Editorial]
    Our view: In allowing for-profit companies to opt out of contraceptive mandate, Supreme Court has extended religion’s reach and diminished individual rights
    June 30, 2014

    In recognizing that for-profit corporations like Hobby Lobby can hold religious beliefs that trump secular laws like the Affordable Care Act’s requirement that women have access to contraceptives without out-of-pocket costs, the Supreme Court has moved the nation in an unwelcome direction. Differentiating between religious organizations and private companies used to be a straightforward matter (and a practice dating back to English common law), but now that distinction is no longer so clear.

    That new standard is potentially far more troubling than the immediate concerns raised by the court’s 5-4 decision in Burwell v. Hobby Lobby or any losing of face by President Barack Obama and supporters of the Affordable Care Act. In many ways, the Hobby Lobby lawsuit (and a companion case involving Pennsylvania-based Conestoga Wood Specialties Corp.) had been misrepresented as just another attack in the Republican crusade against Obamacare.

    Hobby Lobby is not a religious faith. Its 28,000 employees have rights, too. And now, apparently, those rights do not extend to having full access to those contraceptives that their employer deems a violation of faith — including IUDs and emergency birth control known as Plan B. Workers can still pay for such health care from their paychecks but not from their health benefits — both of which are supplied by their employer, of course.

    The effect is certain to be a reduction in the use of contraceptives and an increase in unwanted pregnancy, which is associated with poverty, child abuse and many other social ills. This is the compelling government interest that the court’s majority chose to ignore — we all benefit when women have better access to birth control. The majority’s notion that access might be addressed some other way flies in the face of political reality. In essence, women’s rights took a big hit Monday that the GOP-controlled House of Representatives isn’t about to restore any time soon no matter what Senate Majority Leader Harry Reid attempts to pass in his chamber.

    All the more maddening is that the belief in question isn’t even rational. Certain individuals believe Plan B, for instance, terminates a pregnancy, which it doesn’t. ACA regulations don’t mandate abortion coverage of any kind. Even Hobby Lobby’s health insurance coverage used to include some of these same contraceptives (until Obamacare raised the issue of government mandates, generally, and Hobby Lobby dropped the coverage and filed suit). Politics appear to have, once again, trumped a woman’s right to choose.

    But it’s worse than that. How many other statutes might now be trumped because the owners of a company can assert some religious view? Hard-fought rights to marriage equality might be ignored by companies that decide same-sex marriage violates their religious beliefs. Might employers now claim that they can’t be forced to provide health insurance for a same-sex spouse despite providing it for opposite-gender partners? Maryland’s recently-passed law protecting transgender individuals from workplace or housing discrimination might not stand up to such a challenge from a family-owned company either.

  4. Making this decision all about women is lame. If I’m not mistaken, I recall that over half of closely held corporations or small businesses are owned by women. Of these, half or more may see this as a victory for their own freedoms. There has to be some give and take in life. That’s what this decision is about, give and take. No one group takes it all, and no one group gives it all.

    Stop wanting everything both ways!

  5. Unfortunately, it isn’t just Hobby Lobby that’s a closely held artificial human. Koch Industries and, I believe, Walmart, are both closely held corporations. This ruling that lets religious trump science can affect thousands of women. The women who work at Walmart are among the most vulnerable when it comes to providing medical care but they probably don’t have basic employer-provided insurance in the first place.

  6. Clarification: A negative event in the general health of a woman, long term consequences to every single body system. Some women end up with heart murmurs from valves that become affected during pregnancy, bladders that are damaged, gestational diabetes that can affect the possibility of diabetes later in life, post partum hypothyroidism that doesn’t resolve itself, etc. very few women will escape pregnancy with lasting changes to her body. The baby is a wonderful prize to women who choose to be pregnant, but to think that women just snap back the way hey were before pregnancy, think again. The more children, the higher chance something will go wrong.

  7. Oh dear…someone is in a testy mood today. Maybe you should avoid reading my posts if they give you agita on the weekends.


  8. John Oliver, when I said “burden” I knew it would be only a matter of minutes before someone glommed onto that to try to make something negative out of my description. It’s a very real fact that child carrying and childbearing is a negative. It is a physical burden on a woman’s body. You cannot deny that biological fact, heart, lungs, digestion, excretion, hormonal, it’s a significant change in a woman’s body. I had four children, I know what pregnancy is and how it affects a woman’s body. I know how difficult it is to raise children and have to work. I consider my children a gift and worth the effort, but if you as a male want to try to imply that it’s not an effort and not a burden on the woman’s body, try having four of them.

  9. “Himself” was the key word. But, that grammar school teacher is always hovering! LeeJ and Samantha are very bright. Give them some credit.

  10. John Oliver

    A person’s biological “burdens” do not trump the unalienable rights of others.


    Should one person’s religious beliefs trump another person’s?

  11. samantha and leejcarroll,

    My last comment was not directed at either of you.

  12. Elaine wrote: Should Hobby Lobby continue to cover the cost of penis pumps and Viagra for men with erectile dysfunction? Why should an employer have to pay for such aids for men who want to have sex? Can’t those fellas live according to their means?
    Of course insurance should pay for that because men don’t seem to care about the consequences of their sexual behavipr It is only women who should have to pay, even if the men are committers apparently of incest, rape, date rape. Then of course there are the men who induce women into the sexual relationship by promises that are completely false, you know I love you I am going to marry you etc (and before anyone says oh she is projecting, let me say thankfully I have never been in any of those situations (well absent one of the first 3 illegal activities)
    Men have a right to have sex and if nature isn’t working for them then health insurance should pay for it, it is a man’s right. A woman, whore, how dare she have sex? How dare she not be afforded all possible protections of meds when birth control doesn’t work, because, like it or not, it is not 100% effective no matter what you choose (absent abstention, and evidently that is all women should be permitted unless they want to, or are willing to take the penalty of become pregnant.

  13. At least one of the doctors you cite conjures images in my mind of a guerrilla fighter defending women in the war against women, where all men are the enemy and all women are victims, complete with her body armor, night vision equipment, combat makeup, and automatic weapons, and where the litmus test for sexual assault is defined as any man within a one-mile facinity of a woman. Whenever SCOTUS is assembled, this means, by definition, that all male justices are sex offenders.

  14. “ome of the loudest applause of the morning came when she dinged the Supreme Court ruling in the Hobby Lobby case, which allows some private companies to claim religious exemptions and not pay for contraceptive coverage mandated under the health care law. Democrats see the ruling as one way to galvanize base enthusiasm ahead of the midterms.

    “Oh, and we believe that corporations are not people,” Warren said, a reference to a comment Mitt Romney made in the last presidential election. “That women have a right to their bodies. We will overturn Hobby Lobby and we will fight for it, we will fight for it.” ” Hope Elizabeth Warren is exciting the base because a republican senate is the last thing women need.

  15. A person’s biological “burdens” do not trump the unalienable rights of others.

  16. Annie,

    Women who have sex are sluts if they aren’t prepared to get pregnant every time they engage in intercourse. At least, that’s what some people seem to think. It appears we still live in a sexist society where drugs and medical aids for men with erectile dysfunction are covered without question–while the women who might have to deal with unplanned pregnancies are given short shrift by some in our country.

  17. Reproductive health care is a huge part of a woman’s health care plan. There was some guy a few weeks back suggesting women shouldn’t have sex unless they were willing to have it result in a baby,or pay for hat part oftheir health care themselves. I suggest that those men who think that way try it themselves first before telling a woman how to deal with her reproductive needs. Biology DOES put an added burden on the woman, she carries and bears the children, her body isn’t unaffected by pregnancy and birth. All sorts of health issues are related to pregnancy and birth.

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