Commentary Contraception

Plan B and Ella Are Not Abortifacients, But False Claims May Hold Up In Court

Imani Gandy

And loathe as I am to admit it, all the studies in the world demonstrating that emergency contraception works not by preventing implantation but by preventing ovulation and therefore fertilization might not hold sway in court.

An amicus brief recently filed by Bart Stupak and Democrats for Life of America in the Newland v. Sebelius birth control benefit lawsuit contends that the Newlands, their for-profit corporation Hercules Industries, and “millions of other Americans” oppose “being forced to cover medicines that are, or that may colorably be thought to be, abortifacients.” The arguments made in the brief are based on false claims that go against an overwhelming consensus about how emergency contraceptives work, based on “scientific research” pursued by agenda-driven religious extremists, who continue to assert that Plan B and Ella are abortion-inducing drugs when they are not. (Unsurprisingly, members of the medical community promoting these claims hail from organizations like the American Association of Pro-life Obstetricians and Gynecologists, and the Christian Medical Association.)

Plan B and Ella are not abortifacients. Plan B (the morning-after pill) and Ella prevent ovulation and prevent a woman from getting pregnant after sex. Nonetheless, those claiming that the birth control benefit infringes their religious liberty remain happily unconvinced. They believe a “colorable argument” exists that emergency contraceptives may prevent an already fertilized egg from implanting.  (“Colorable” is legalese for “barely passes the smell test, but enough to get by in court.”) Additionally, because birth control benefit detractors usually champion personhood— the notion that a fertilized egg is a person—they believe that interfering with the implantation of a fertilized egg is abortion and tantamount to murder.

It’s hard not to think that the Catholic lobby, led by Timothy Dolan and the United States Conference of Catholic Bishops seized upon outlier scientific research on emergency contraception in order to gin up controversy about the birth control benefit because they were losing the “birth control is a sin” argument. In August 2011, before the Obama administration issued the policy, Democratic pollster Celinda Lake conducted a poll which demonstrated that Catholics support the birth control benefit:

We found that Catholic voters tend to mirror voters overall when it comes to reproductive health care services that the Affordable Care Act will cover. Not only are Catholics favorable to including birth control or contraception in insurance coverage, these inclusions also make them more favorable toward the Affordable Care Act. Moreover, a majority of Catholics say that the US Conference of Catholic Bishops’ criticism of the requirement to cover contraception and birth control with no co-pay or deductible makes no difference in how they view the Affordable Care Act.

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Since Catholics apparently don’t care about contraception as much as the Catholic higher-ups would like them to, the Catholic lobby mounted a public relations campaign to make them care; and they did so by, as Sarah Posner of Religion Dispatches points out, demonizing emergency contraceptives as “abortion-inducing” or “pregnancy-terminating” drugs. The Catholic lobby purposefully conflated contraception and abortion-inducing drugs like RU-486 (which is not covered by the birth control benefit policy) in an effort to, “broaden opposition to the rule beyond the narrow group of people opposed to contraception to people also opposed to abortion.”

As a result, an uncontroversial policy to ensure that all employer-provided insurance plans cover FDA-approved methods of contraception became a policy about forcing employers against their religious will to distribute abortifacients and “abortion-inducing drugs.” The Catholic lobby hung their papal hats on both outdated and disproven data that could not exclude the possibility that emergency contraceptives might interfere with implantation (even though overwhelmingly, evidence indicates that it does not), and attempted to redefine a medical concept—what an abortion is or isn’t—in order to suit their own purposes and rile up the apathetic.

It’s hard to figure out what could be driving the Catholic lobby’s virulent opposition to the birth control benefit aside from a naked attempt to control women’s reproductive choices and freedom through partisan politics. Indeed, considering that the Catholic Health Association and the USCCB approved the Obama administration’s plan to address religious liberty concerns by shifting the burden of providing contraception access from employers to insurance companies until they later decided they no longer approved, stripping women of their reproductive rights certainly seems like the intended goal.

Whatever leeway the Catholic lobby had intended to grant the Obama administration was quickly dropped in favor of a misinformation campaign that, unfortunately, has gained traction over the past year. We are now actually having a conversation about whether or not contraception approved by the FDA and having nothing whatsoever to do with abortion causes abortion. Lawsuits complaining about “abortifacients,” “abortion-inducing drugs” and “pregnancy-terminating drugs” are vigorously challenging an innocuous policy about providing totally-not-abortion-related contraception to women. Plaintiffs in these lawsuits are demanding that their “religious belief” in false information and junk science be used to trump the rights of others.

The Stupak brief illustrates the point:

The Newlands, like millions of other Americans, believe that the life of a distinct human person begins at fertilization and that the grave wrong of abortion includes intentionally preventing the embryo’s implantation. The government, of course, cannot question the validity of that moral view.

It is true that the government cannot question the validity of a person’s moral view. Under the Supreme Court’s ruling in Thomas v. Review Board, courts must assume that the birth control benefit litigants are acting from an honest religious conviction. But the Supreme Court also held, in Wisconsin v. Yoder, that not all religious beliefs are entitled to constitutional protection. (Not all religious beliefs are entitled to protection under the Religious Freedom Restoration Act (RFRA), either—only religious beliefs substantially burdened by a particular government policy are entitled to protection.)

People are entitled to believe all sorts of things and courts can’t question it. That doesn’t make those beliefs correct, and that certainly doesn’t mean that those beliefs must be given the force of law. Courts should avoid ruling upon the constitutionality of a public health policy based upon anti-factual religious beliefs, especially where, as here, a small group of people are manipulating facts and public opinion in a cynical bid to force the religious values of the few down the throats of the many.

Whether for-profit businesses like Hobby Lobby, Domino’s Farm, and Hercules Industries believe that contraception is an abortifacient shouldn’t make a difference as a matter of law. Either something is an abortifacient or it isn’t. The pill, Plan B, and Ella aren’t. That should be the end of the discussion. But it’s not, because due to lengthy processes, FDA labels often do not reflect the most current science, and the FDA has therefore not yet changed its labeling to exclude the possibility that emergency contraceptives prevent implantation of a fertilized egg, and that may end up being the conversation stopper.

Citing various FDA Advisory Committee materials (like this one), and even Kathleen Sebelius’s own statements, the Stupak brief devotes page after page detailing birth control benefit objectors’ “colorable basis for fearing that emergency contraception may cause termination of embryos.” And loath as I am to admit it, all the studies in the world demonstrating that emergency contraception works not by preventing implantation but by preventing ovulation might not hold sway in court.

Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

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Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.

News Media

Study: Politicians Dominate Nightly News Reports on Birth Control

Nicole Knight Shine

Study co-author Michelle H. Moniz, assistant professor of obstetrics and gynecology at the University of Michigan, noted that news segments largely framed contraception as a political issue, rather than a matter of public health.

When it comes to asking experts to weigh in on birth control, the nation’s three major TV networks favor political figures over doctors, according to a forthcoming paper in the journal Contraception.

Analyzing nightly news segments on contraception on ABC, CBS, and NBC between 2010 to 2014, the authors found that few broadcasts included medical professionals (11 percent) or health researchers (4 percent). Politicians, however, dominated coverage, appearing as sources 40 percent of the time, followed by advocates (25 percent), the general public (25 percent), and Catholic Church leaders (16 percent).

Sixty-nine percent of news segments on birth control included no medical information, the authors found.

Study co-author Michelle H. Moniz, assistant professor of obstetrics and gynecology at the University of Michigan, noted that news segments largely framed contraception as a political issue, rather than a matter of public health.

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“Health professionals are an untapped resource for ensuring that the most up-to-date, scientific information is available to the public watching the news,” Moniz said in an email to Rewire.

An estimated 24 million Americans watch nightly news, making it an “influential information source,” the authors note.

And although nearly half of pregnancies in the United States each year are unplanned, news segments did not emphasize highly effective contraception like IUDs, the researchers found. Instead, emergency contraception, commonly known as the morning-after pill, warranted the most coverage, at 18 percent, followed by the daily oral contraceptive pill, at 16 percent.

The researchers’ analysis of 116 nightly news segments coincided with the rollout of the Affordable Care Act by President Obama and continued through the June 2014 U.S. Supreme Court decision in Burwell v. Hobby Lobby, which carved out the right for private corporations to deny birth control coverage to employees on religious grounds.

“We found that when the network television media covers contraception,” the authors observed, “they do so within a largely political frame and emphasize the controversial aspects of contraception, while paying less attention to health aspects and content experts.”

The paper was authored by five researchers from the University of Michigan, Ann Arbor; the Veterans Affairs Center for Clinical Management and Research in Michigan; and the Pennsylvania Department of Health.

The study builds on earlier work exposing media bias and gender disparities in reproductive health coverage.

In June, an analysis of prime-time news programs on cable networks CNN, Fox News, and MSNBC by media watchdog group Media Matters for America found that 40 percent of guests on all three networks made anti-choice statements or identified as anti-choice, compared with 17 percent of guests who made pro-choice statements or identified as reproductive rights advocates. On Fox, guests made a total of 705 inaccurate statements about abortion care over a 14-month period.

The nightly news study follows a report earlier this year on gender disparities by the Women’s Media Center, a nonprofit advocacy group, indicating that male journalists dominate reproductive health coverage, with bylines on 67 percent of all presidential election stories related to abortion and contraception. Female journalists, in comparison, wrote 37 percent of articles about reproductive issues.