What's So Controversial About the Contraceptives in Hobby Lobby

Surprise: The Supreme Court hasn't defined "conception" in a new ruling on religious freedom.


Today in Burwell v. Hobby Lobby Stores Inc., the Supreme Court decided 5-4 that “closely held” for-profit corporations have a right to religiously object to government regulations, in this case the so-called “contraceptive mandate” of the Affordable Care Act, which requires businesses over a certain size to cover FDA-approved contraceptives in their employee insurance plans.

The Court was careful to limit the healthcare implications to contraception, writing: “This decision… should not be understood to hold that all insurance-coverage mandates, e.g. for vaccinations or blood transfusions must necessarily fall if they conflict with an employer’s religious beliefs.”

As the Court repeatedly states in the decision, the plaintiffs believe that life begins at conception.” But what does that actually mean? For those who believe that life begins at conception, the question then becomes this: What specific point in the reproductive process counts as “conception?”

This case centers around specific religious objections to contraceptives that prevent an egg from implanting in a woman’s uterus, which plaintiffs believe are tantamount to abortion. Out of the 20 Food and Drug Adminstration-approved birth control methods, the two companies involved in the case—Hobby Lobby and Conestoga Wood—object to four: two kinds of emergency contraceptive or “morning after” pills, and two types of intrauterine devices, or IUDs.

The morning-after pills work in a couple of ways. They may just prevent ovulation so the egg is never released from the ovary, they may prevent fertilization of the egg, or they may prevent a fertilized egg from attaching to the uterus. It’s that last one that’s the problem. IUDs are a little more confusing—as my colleague Olga Khazan wrote, though they typically prevent the sperm from reaching the egg, they can also be used as emergency contraception, if they’re implanted up to five days after unprotected sex.

The plaintiffs in Hobby Lobby define conception as the point when the sperm and egg come together to make a zygote, which is why they object to these birth control methods—they can interfere after an egg has already been fertilized. The American Congress of Obstetricians and Gynecologists, on the other hand, defines conception as the moment when a fertilized egg implants in the uterus. The Supreme Court noted in its decision that federal regulations also define conception this way—“pregnancy encompasses the period of time from implantation to delivery,” one reads.

But not everyone agrees on this definition, and the court did not weigh in on the timing of conception or what kinds of birth control may or may not be abortifacients. “It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable,” the decision reads.

Even among members of the same faith, opinions differ. For example, Catholic priest Richard Sparks told The Atlantic that “the Catholic position is that from the moment of conception—the moment his DNA combines with her DNA—you can argue that you have a unique individual,” but also mentioned that some Catholic theologians come down on the side of implantation. None of the plaintiffs in Hobby Lobby are Catholic, but other groups who have filed suits are, including Notre Dame University and an order of nuns called the Little Sisters of the Poor.

While the Court has clarified these businesses’ right to religiously object, it doesn’t offer an opinion on a standard definition of conception. So people will continue to be divided on whether these drugs are abortifacients or not, based on their own perceptions of the reproductive process.