Analysis Law and Policy

Religious Challenges to the Birth Control Benefit, Explained

Imani Gandy & Jessica Mason Pieklo

There's another Supreme Court challenge to the birth control benefit. Here's what you need to know about it.

In late spring, the Roberts Court will hear the umpteenth challenge by conservatives to the Affordable Care Act, and the second specifically challenging the birth control benefit of the ACA.

These cases are confusing. Conservatives have filed hundreds of challenges; the cases involve tax and employee benefits law, which few lawyers even understand; and there has been significant political bluster along the lines of “the Obama administration forcing birth control on nuns.”

But they are important, because the Supreme Court will once again be balancing women’s rights to a full range of health-care benefits under the law against the “religious rights” of corporations and nonprofit organizations to deny those benefits. A win for conservatives will drastically reduce contraceptive coverage otherwise available under the ACA.

What are the cases the Supreme Court is going to decide?

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There are seven cases before the Court. Three of them have been consolidated for one brief: (1) Zubik v. Burwell; (2) Priests for Life v. Department of Health and Human Services; and (3) Roman Catholic Archbishop of D.C. v. Burwell.

The remaining four cases were consolidated for a second brief: (1) East Texas Baptist University v. Burwell; (2) Southern Nazarene University v. Burwell; (3) Geneva College v. Burwell; and (4) Little Sisters of the Poor v. Burwell.

Petitioners filed their opening briefs with the Court earlier this month. The government will file its response on February 10.

Who are the challengers?

The challengers, or “petitioners,” are a group of religiously affiliated nonprofit organizations, mostly Catholic and evangelical Christian nonprofit schools like the Catholic University and Thomas Aquinas College.

What does that mean?

It means what it sounds like, for the most part. They are nonprofit organizations that are somehow affiliated with a particular religion. In the birth control benefit cases, they happen to all be evangelical Christian or Catholic. That’s probably not a coincidence, since the deluge of religious freedom cases with respect to reproductive and LGBTQ rights have been orchestrated by members of those denominations.

These organizations offer a variety of health insurance plans to their students and employees. Some offer group health insurance plans that they purchased through a commercial insurance carrier, like Aetna or Blue Cross. Others are self-insured, which means they provide health care to their students and employees, and pay for it out of their own coffers, but contract with third-party administrators for actual coverage. While the terms and names are different, the coverage is virtually identical.

Some of the organizations offer what are known as “church plans”—insurance plans that are for the benefit of employees of churches or other religious organizations. Church plans are covered under the Employee Retirement Income Security Act of 1974 (ERISA), which bars any government regulation of an employee benefit plan run by a church. This means that organizations with church plans don’t have to offer contraceptive coverage.

In other words, workers at organizations that offer health insurance through a church plan do not have a right to contraceptive access through their employer-provided plan. By contrast, employees who fall under the self-insured umbrella still have a right to contraceptive access through their employer-provided health-care plans; they just must access it through a third-party administrator.

What are petitioners complaining about?

The birth control benefit, of course.

The Affordable Care Act (ACA) requires most private health insurance plans to provide coverage for a wide range of preventive services. This includes prescription contraceptives approved by the FDA.

Including contraception as a preventive service sent the religious right into a frenzy. They complained that providing contraceptive coverage is a violation of their religious freedom under the Religious Freedom Restoration Act (RFRA).

The Obama administration set about trying to appease the birth control naysayers by offering a compromise, so it could accomplish its goal of providing contraception to women without co-pay but also remain respectful of the religious objectors’ beliefs.

The compromise was simple: Churches and other houses of worship could exclude contraceptive coverage from their health insurance plans.

Other organizations—religiously affiliated nonprofit organizations like the ones whose cases are pending before the Supreme Court—would be able to opt out of the birth control benefit by filling out Form 700 and passing it along their insurer (or third-party administrator, if they were self-insured). Form 700 would let their insurer know that they oppose contraception on religious grounds and refuse to provide coverage for it. The insurer (or third-party administrator) would then step in and provide contraceptive coverage.

That process for accommodating objections to the birth control benefit is being challenged by more than a dozen religious nonprofits, which argue that the form and notification requirements violate the Religious Freedom Restoration Act (RFRA).

In providing that coverage, insurance companies would notify all the nonprofit’s students and/or employees, as well as pay for that coverage out of the insurance company’s own pockets.

This seemed like a reasonable workaround. It would permit religious objectors to disentangle themselves from involvement in the process by which their employees and students could obtain contraceptive coverage if they wanted it.

Still, the religious nonprofits cried foul. Two in particular—Little Sisters of the Poor and Wheaton College—claimed that the task of filling out the form in and of itself was a violation of their religious freedom, and they filed lawsuits by the dozens.

And we, as a nation, rolled our eyes.

But the Supreme Court came up with another solution—a workaround to the workaround, so to speak. Religious nonprofits could send a letter to the Department of Health and Human Services notifying HHS that they objected to providing contraceptive coverage and let HHS sort it out.

According to petitioners, though, this workaround to the workaround is just as much a substantial burden on their religious freedom as the original one.

So what are we left with?

A group of religious nonprofits who don’t want simply to be disentangled from the provision of contraceptive coverage to their students and employees. They want to boycott the birth control benefit entirely, preventing their students and employees from obtaining that coverage at all.

Didn’t the U.S. Supreme Court already decide a big birth control benefit case? Wasn’t that Hobby Lobby?

Yes. The Court in Burwell v. Hobby Lobby ruled that closely held for-profit corporations could not be forced to comply with the birth control benefit by providing their employees health insurance plans that offer coverage for contraceptives.

How does Hobby Lobby relate to the religious nonprofit cases before the Court now?

They are tangentially related. The Supreme Court in Hobby Lobby basically said that Hobby Lobby should be granted an accommodation too. In July 2015, the Obama administration released final rules for employers claiming a religious objection to complying with the birth control benefit. Those rules extended to Hobby Lobby, and closely held corporations like it, the accommodation that had previously only been available to religious nonprofits.

What’s RFRA again?

RFRA is the Religious Freedom Restoration Act. It prohibits the government from imposing “substantial burdens” on a person’s religious exercise.

When a person—or corporation, because, remember, in the eyes of the law, corporations are people—files a lawsuit claiming that a particular law violates RFRA, the courts must determine whether or not the law imposes a “substantial burden” on religious freedom. If it does, the courts next must determine whether the government imposed the substantial burden in order to accomplish a really important goal, or a “compelling interest.” If it did, the courts finally must determine whether or not that substantial burden is the “least restrictive means” of accomplishing that really important goal.

What is the compelling interest in these cases?

The Obama administration has argued that the birth control benefit promotes women’s healthfulness and reduces inequality in health-care costs between women and men.

The legislative record on the ACA is replete with information about how women have been getting screwed in health-care services. Insurance companies engage in absurd shenanigans like declaring pregnancy a preexisting condition, for example; women pay 68 percent more than men for out-of-pocket medical costs. The birth control benefit, along with the other women’s health preventive care services included in the ACA, are intended to reduce those costs and bring the cost of women’s health care in parity with men’s.

What is the substantial burden in these cases?

That’s the million-dollar question. RFRA’s provisions don’t apply to simply any burden on religion. They apply to substantial burdens on religion. And whether or not a particular burden on religion is a substantial one is a legal question that courts must decide. Petitioners argue that the monetary sanctions for noncompliance are the burden—the millions of dollars the government will force them to pay if they refuse to comply with the law.

The Obama administration has responded that there is no burden on the petitioners’ rights because the petitioners don’t have to comply with the law at all if they don’t want to. They can apply for, and would likely be granted, an accommodation, in which case they would face no financial penalties, or even additional administrative costs related to coordinating contraceptive coverage. That’s the argument the Roberts Court is going to untangle.

It is true that courts are not allowed to question the sincerity of a particular religious belief. If petitioners say that filling out a form burdens their religion, then fine, the courts should accept that claim. Filling out a form burdens their religion. Courts have to take petitioners’ word for it. But they don’t have to take petitioners’ word as to the substantiality of the burden.

Petitioners in the seven cases each claim that the birth control benefit substantially burdens their religious freedom because it forces them to “facilitate” access to contraceptives and to pay exorbitant fines if they refuse. They also question whether or not the government’s stated interest in gender equality and women’s healthfulness is “compelling,” and contend that the government has not adopted the “least restrictive means” of accomplishing said goal.

Why do petitioners claim that filling out the form is a substantial burden? 

Petitioners have argued that the task of filling out the form “triggers” or “facilitates” the ability of their employees to get coverage elsewhere. Petitioners may not be required to pay for or provide the coverage, but they claim that the self-certification process does not absolve them from “complicity in sin.” After all, the process still results in the delivery of contraceptive coverage to their employees and students from a third party.

“Petitioner[s] refuse to ‘comply’ with the contraception mandate by filing the ‘self-certification’ or ‘notification,’ since the submission of either document would result in the objectionable coverage being delivered to their employees and students in connection with their health plans,” reads one of the briefs filed with the Supreme Court.

But that’s not true.

As Seventh Circuit Court of Appeals judge Richard Posner pointed out when he rejected the trigger argument in University of Notre Dame v. Burwell, signing the form is a mere administrative exercise that doesn’t trigger, cause, or authorize employees to get contraception where they could not obtain it before. The employees and students of religious nonprofits are already entitled to that coverage through the ACA. The self-certification process simply identifies which organizations have declined to get involved in contraceptive delivery, so the government can hand off the responsibility to a third party. In other words, the employees and students are going to obtain birth control whether the organizations want it or not.

And that’s what petitioners oppose. Stripped down, their argument amounts to “We don’t want to be involved in providing contraception to our employees and we don’t want anyone else to provide it either.”

But the law does not permit petitioners to dictate the independent actions of third parties.

The petitioners even want to stop their insurers from providing contraceptive coverage absent any involvement from religious nonprofits. As one of the briefs explicitly says, “[P]etitioners’ faith precludes them from contracting with or offering health plans through any company that is authorized, obligated, or incentivized to deliver such coverage to their plan beneficiaries in connection with their health plans.” Simply put, the religious nonprofits don’t want to contract with any company that provides contraceptives.

Only one court of appeals, the Eighth Circuit, has bought the trigger argument. Not even the Fifth Circuitthe court that thinks if a woman has to drive hundreds of miles to get an abortion it’s fine because in Texas the roads are flat and she can speed—has been onboard.

What about the nuns? Why is the Obama administration forcing nuns to provide contraceptive coverage?

The Little Sisters of the Poor is a bit of a baffling case.

As Jessica Mason Pieklo has pointed out for Rewire, due to ERISA, the plan administrator for the Little Sisters has no legal duty to provide contraception. And there’s no way for the Obama administration to force the Little Sisters to do so:

[B]ecause these disputes center around employer-sponsored benefit plans, they fall under the umbrella of the Employee Retirement Income Security Act of 1974 (ERISA). According to the Obama administration, and further explained in this excellent piece by Sarah Posner, ERISA already bars any government regulation of an employee benefit plan run by a church. That prohibition on “church plans” is incorporated into the ACA. This means that, per the Obama administration, the plan administrator for the Little Sisters has no legal duty to provide the services at all, and there is no way to compel it to do otherwise. In other words, even if the Little Sisters loses its legal challenge to the mandate, it still won’t have to provide its employees with contraception coverage, and there’s nothing the administration can do about it.

So why are the Little Sisters even bothering to sue?

As Pieklo has pointed out, they are being used by conservative culture warriors to test the outer limits of what a substantial burden is. It’s a classic case of litigators choosing their plaintiffs carefully, much like conservatives did when they chose the “plump grandmas” to challenge abortion clinic buffer zones. If filling out paperwork is a substantial burden on religion, then “substantial burden” ceases to have any legal meaning.

“With the ‘substantial burden’ hurdle removed, complying with practically any law could be characterized as a religious objection and used by employers to avoid complying with a host of government regulations,” Pieklo writes.

What’s going to happen?

That’s the big question. When the Roberts Court ruled businesses like Hobby Lobby and Eden Foods could assert corporate religious objections to the birth control benefit, Justice Anthony Kennedy relied heavily on the existence and presumed reasonableness of the accommodation process to justify extending the same kind of break to other businesses in his opinion for the Court. That should suggest the accommodation is safe.

But almost immediately after issuing the Hobby Lobby decision, the Court turned around and told Wheaton College, one of the very first religiously affiliated nonprofits to object to the accommodation, that it would likely be successful on its claims the accommodation process also violates RFRA.

The Seventh Circuit Court of Appeals disagreed and refused to grant Wheaton College an injunction. And, like we said earlier, only one federal court of appeals has even accepted the nonprofits’ arguments. For a while, legal observers questioned whether the cases would even make it up to the Roberts Court, yet here we are. Maddening, isn’t it?

So who knows if the Roberts Court will uphold the process or not. But what we do know is that conservatives won’t stop mounting legal challenges to the birth control benefit, as long as it remains law.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”