More Misinterpretations of Hobby Lobby

Hobby Lobby was never so much about the principled Constitutional issue of whether there is a right to conscientious objection (be they based on religious or scientific convictions) as much as a prop in the melodramatic political “war on women” by which some cynically hope to save at least a pro-abortion Senate majority in the last two years of Barack Obama’s presidency. One might even say that they secretly welcomed it: had the decision gone the other way, what would they talk about? Barring corporate political contributions just isn’t as sexy (and would not be expected to garner as many votes) as “defending the Pill” against Wall Street (or Oklahoma City) employers “in your bedroom.”

That, of course, is the current line of the media elite repeated recently by Gail Collins in her September 6 New York Times column “Passion for the Pill,” in which she suggests that Republicans who want to win in November will have to pledge loyalty to “birth control.” Given the flood of ink spilled in the wake of the Hobby Lobby decision one hesitates to contribute to the deluge, but the absence of certain themes in that commentary demand a few thoughts:

(1) Hobby Lobby is not about contraception.
Despite the drum beat about “contraception,” Burwell v. Hobby Lobby Stores, Inc. is about abortifacients. Now, except in some Catholic circles, the word “abortifacient” is rarely seen. When most people think of “abortion,” they think of a surgical procedure but, very early term, there are drugs and devices which function after conception (at least in some instances). They do not prevent conception (i.e., function as contraceptives). They prevent the unborn child that has been conceived from developing further (i.e., function as pharmaceutical or mechanical abortifacients). That distinction is critical, and it has been largely ignored. At least those who say Hobby Lobby is about “birth control” are more accurate, since “birth control” by definition “controls” (i.e., prevents) births. “Birth control” encompasses contraceptives and abortifacients. Contraception does not.

(2) “Pregnancy” has become an equivocal term.
As most people understand it, a woman becomes a mother, i.e., becomes “pregnant,” when she conceives a child. That is the popular and commonplace meaning of “pregnancy.” But, as Human Life Review frequent contributor Paul Greenberg once observed, “verbicide precedes homicide.” We know how that has played out in the abortion debate (consider, in his 2013 paean to Planned Parenthood, Barack Obama managed to laud their multi-million dollar abortion business without once using the “a” word). The same dissimulating word game is in play with “pregnancy.” The American College of Obstetricians and Gynecologists summarily redefined the term “pregnancy” to begin at implantation, i.e., when the unborn child attaches himself to the uterus wall, up to 20 days after fertilization. (In fact, ACOG also defines “conception” as implantation, not—as most people and reality would—as the union of the ovum and the sperm. Such unilateral moving of the goalposts thus allows those who play these word games to call early-term abortifacients “contraceptives.” (See the Guttmacher Institute website, especially the note “Language Matters,” obviously relevant to the current trend of abortionists to evade even their term, “choice.”) So, when opponents of Hobby Lobby speak of various abortifacients as “contraceptives,” they are using a word game to obfuscate just when these “contraceptives” work, i.e., after conception. This process is nothing new: it was launched back in the 1980s, after the Reagan landslide of 1980 brought in the first Republican Senate since Roe and hope appeared that the decision might be peeled back.

(3) Implantation is no magic moment.
Let’s assume, however (dato non concesso) that reality can be changed by unilaterally changing of definitions. What happens at implantation that qualitatively changes the unborn child? The answer is: nothing. Implantation is a developmental stage, which can occur between a week and three weeks after conception. The embryo has been moving from the fallopian tubes to the uterus, where he will implant in the uterine wall and develop there until birth. That stage is necessary for his continued development, but does not change the child. No new DNA. No new genetic code. The unborn child after implantation is no different than before implantation (except that he has reached a new stage of development necessary to his survival).

This is patently different from the unborn child who is different—genetically—after conception from the sperm and ovum that existed before conception. The sperm and egg no longer exist after conception: they have become something new. The unborn child did not exist before conception: he is distinct from what preceded him. No analogous change occurs at implantation. If we accept the argument that reality depends on definitions (and not vice versa) then, if “pregnancy” really exists only after implantation, then when a mother aborts are we to say there was no pregnancy? Such redefinition, carried to its logical end, makes us face an interesting conundrum: abortion actually never requires a “pregnancy” because if successfully passing through developmental stages is sine qua non to a pregnancy, then a successful abortion (which abridges that development) means not just that the woman is no longer pregnant but arguably never was pregnant. It is obvious the extremes to which such standing of language on its head leads.

Hobby Lobby raised important religious freedom issues, but we would be doing the litigants and the unborn a disservice if we were to let the debate over the decision and the Obamacare abortifacient mandate turn purely on religious freedom issues. What Obamacare did (and continues trying to do) is undermine federal policy—in place since the Hyde Amendment in the 1970s and held constitutional in Beal v. Doe (432 U.S. 478)—that while a woman may have a right to have an abortion, she did not have a right to have another person (be that a taxpayer or a private person) pay for it. Or, as one tweeter succinctly observed about the canard of “bosses in the bedroom”:

“Get your politics out of my bedroom!”  “Not a problem.  I’m just going to grab my wallet before I leave.”  “The wallet stays, bigot!”

(Photo Credit: Pablo Martinez Monsivais / AP)

John M. Grondelski


John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, NJ. All views expressed herein are exclusively his own.

  • garytschu

    Lost in all this discussion is the abortifacient back-up mechanism inherent in the common pill. Take the pill and it usually prevents conception but when it does not it causes an early abortion. Hobby Lobby got it only half-right, even using it’s own flawed logic that the only problem with forcing all employers to provide free contraception would be with those designed primarily as abortifacients. see:

  • James

    Irony: An article about the misinterpretation of Hobby Lobby that proceeds to misinterpret Hobby Lobby.

    The case is a very narrow one. Essentially, the majority opinion said that the government had issued plenty of exemptions for the HHS Mandate so what’s one more? The government’s had conceded the substantive arguments of the case (that the mandate was a substantial burden on religious exercise and that a less intrusive means of enacting the goal was available) with the non-profit exemption and was arguing the somewhat absurd point that the RFRA shouldn’t apply to closely held for-profit corporation or their owners.

    • Augustus

      You are missing the point and focus of the article. The author is discussing the pro-life issues that the case highlighted, specifically the claims of Hobby Lobby critics. He does not offer a legal analysis of the decision.

      • DE-173

        I see “James 1225” is back.

    • John Grondelski

      The decision itself is narrow, but the social viewpoint being created by the ensuing (non)-debate is broad. You can win (even pittances) in federal court but lose in the court of public opinion. My concern is that the standard response in support of Hobby Lobby has been religious freedom. I agree that is A response, but I fear that it is also being used as THE response by some because they do not want to talk about the pro-life side of this case… and we should not allow that issue to be blacked out.

  • Vinnie

    “…then successful abortion (which abridges that development) means not just that the woman is no longer pregnant but arguably never was pregnant.”

    Isn’t that what contraception, unfettered sex, is all about? Truly, ignorance is bliss – just ignore what pregnancy is. Really, they’ve been saying that all along. “It’s just a mass of tissue.”

  • DE-173

    Make everybody else pay for me to have sex without worrying about getting pregnant has no counter argument. Ever try to argue with a four year old in a candy store?

  • redfish

    “Despite the drum beat about ‘contraception,’ Burwell v. Hobby Lobby Stores, Inc. is about abortifacients.”

    Yes, but does that mean you wouldn’t support someone’s right to not offer contraceptive coverage to employees?

    I agree with the idea that the whole contraceptives issue is a prop to talk about a phony “war on women.” But how do you get past that? By talking about the semantic distinction between abortion and contraception? I don’t think people who aren’t religious care a lot about the distinction at that stage.

    So I don’t get the approach of hiding from the contraception issue.

    • John Grondelski

      By turning abortifacients into contraceptives, you can salve some people’s consciences (falsely). Also, many Protestants who will be with you on abortifacients won’t on contraceptives. So it’s imperative to show just what the stakes here are: if you oppose abortion, you need to oppose Hobby Lobby. By letting abortifacients be misrepresented as contraceptives, they benefit from the broader social consensus about the acceptability of contraception and that, precisely, is what we need to combat. If you are not against us, you are for us.

      • Connie Boyd

        The problem is misrepresenting contraceptives as abortifacients, not the other way around. The reason this is being done by Hobby Lobby and its apologists is because not only “many Protestants” but almost all Catholics of reproductive aren’t “with” the Catholic church on the issue of birth control. People can see through the ruse. Pretending the Hobby Lobby case is about abortion isn’t working. Pretty much everyone can see that it’s about obstructing access to effective contraception, which the church ridiculously calls a “grave evil.”

        And by the way, trying to force women to give birth to unwanted children against their will is rightly seen as a “war on women.”

  • Fred

    Is there any sane end to what constitutes a right or entitlement when you are free to take other people’s money to spend and buy favors? I know we don’t serve mammon, but that doesn’t mean that we ought not to object to other’s immoral claims to the fruit of our labors either. Instead of asking simple (but important) questions about who different elected officials are or about our nation’s basic history, I’d love to see a “man in the street” interview asking people “what do you believe in” or “what are your rights and responsibilities”? I can imagine in my mind the hours of endless stares that would produce. Having said that, I was re-reading St Paul’s letter to the Corinthians yesterday and his toils with the troubled people of this world so I tried to take heart his timely message of patience and suspension of judgment. I’d love to think that I did, but in my heart I don’t think I’m made of the stuff to be an Apostle because I see a world falling part all around me and find it quite hard to not judge, particularly those who through their position and power of persuasion pervert the minds of others. It’s utter insanity to me how someone can be an accomplice to the murder a child in the name of choice a claim to have a conscience or a soul. It’s insane also to think that we’ve become so self-absorbed that we have lost all awareness of the beauty and purpose of sex in marriage between a man and a woman is as well.

  • John Grondelski

    Wesley Smith made some brilliant comments today about why “the availability of over-the-counter-contraceptives” issue seems to have surfaced in the Colorado Senate race (see Gail Collins’ column, which I link in the article): politics. If the “Pill” is OTC, it isn’t Obamacare covered, so no need to force employers to pay (and so, no “war on women” trope). Of course, then you have to come back and admit that oral contraceptives are powerful drugs that should not be used absent a physician’s oversight, which then raises the “if-they-are-so-universally-used-and-safe-what-ARE-the-contraindications?” See