From Arthur's Policy Desk: Hobby Lobby, An Example of What Does Not Matter

Dr. Arthur Garrison

In the case of Burwell v. Hobby Lobby Stores, Inc., Hobby Lobby asserted that from its religious perspective, anything that prevented the fertilized egg from growing into a baby – by definition – was in the same category as abortion. Under the Affordable Care Act, employers are required to provide a base level of care within the health care insurance that they provide to their employees. Birth control is included in that base level coverage. Under the Food and Drug Administration (FDA) rules, there are twenty different types of contraception methods. Hobby Lobby sued the Department of Health and Human Services (DHH) regulations that included four methods of contraceptives. The first two methods are “day after” or emergency contraceptives – Plan B (levonorgestrel-LNG) and Ella (ulipristal acetate-UPA). The second two methods are intrauterine devices (IUDs) – levonorgestrel releasing intrauterine system (LNG-IUS) and the copper Intrauterine Device (Cu-IUD). Hobby Lobby in its arguments to the Court asserted that it opposed the specific funding of these four methods of contraceptives because they are “abortifacients” and that “they have no objection to the other 16 FDA-approved methods of birth control.”

Fair enough. What was completely missed by the Court and the reaction to the decision is that Hobby Lobby was factually wrong. These four methods are not “abortifacients.” A brief submitted to the Court by a group of medical scientists explained that Plan B, “levonorgestrel (LNG), [is] a synthetic version of the naturally-occurring hormone progesterone [that] works by preventing or disrupting ovulation, but is not effective after ovulation has already occurred.” The reason being, “LNG does not cause changes to the endometrium (uterine lining) that would hamper implantation.” Ella “acts on human progesterone receptors.” It “works later in the pre-ovulatory cycle, when [Plan B] is no longer effective.”

Here is the point. The “claim that Plan B and Ella prevent implantation is not supported by current scientific data or by evidence in the record below. To the contrary, scientific research shows that Plan B and Ella both function by inhibiting or postponing ovulation; they do not prevent fertilization or implantation.” As for the two types of IUDs, the “LNG-IUS works primarily by thickening the cervical mucus, thereby preventing sperm from reaching the egg.” “The Cu-IUD affects the motility and viability of sperm and impairs their fertilizing capability.” The brief goes on to explain that none of the methods can dislodge a fertilized egg, the scientific definition of abortifacients. A Google search confirms the assertions made in the brief.

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The Court and both sides of the litigation bypassed the brief altogether. Rather than focusing on the science of these methods and the legal/factual issue of whether the four methods were in fact violative of religious convictions, the Court ruled that for-profit corporations were “persons” under the Religious Freedom Restoration Act of 1993 (RFRA) and that that the RFRA protects for-profit organizations that “wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.” The Court could have ruled that since the four methods did not violate Hobby Lobby’s religious values because they were not abortifacients, Hobby Lobby was legally obligated to offer these four methods along with the other 16. This limited approach would have avoided the current result in which the Court provided a legal determination that left open more questions than it answered.

Dr. Arthur Garrison is an assistant professor of criminal justice at Kutztown University. This piece is the work of Dr. Garrison and does not reflect the opinions of Kutztown University or its faculty, staff, students or alumni.