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.

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