Bench Memos

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On “Emergency Contraceptives” and Religious Liberty


Senior federal district Judge Edward R. Korman recently ruled that the FDA is obligated to make two “emergency contraceptives”—Plan B and Plan B One-Step (I’ll refer to them jointly as “Plan B”)—available “without a prescription and without any point-of-sale or age restrictions.” In other words, if his ruling goes into effect, anyone of any age could purchase Plan B over the counter, whether from a licensed pharmacy or from any other provider. His ruling would override the contrary directive made by HHS Secretary Kathleen Sebelius, and endorsed by President Obama, that limits non-prescription access to Plan B to women 18 and older and that makes Plan B available only at pharmacies.

I have not studied whether Judge Korman’s ruling is correct as a matter of administrative law, and I will assume arguendo in this post that it is indeed correct. Unfortunately, as Linda Greenhouse’s latest blog post illustrates, there are some who are eager to misuse Korman’s ruling in support of their broader ideological agenda. Greenhouse writes (emphasis added):

Judge Korman begins where discussions of emergency contraception should begin but almost never do: by defining the drug and how it works. Those challenging the requirement for employer-provided health insurance to cover birth control almost invariably train their attack on emergency contraception by calling it an “abortion pill” or abortifacient and asserting a religious objection to abortion.

But Judge Korman, citing a Government Accountability Office report that collected scientific articles on the mechanism of levonorgestrel, the synthetic hormone that is the drug’s active ingredient, demonstrates that Plan B is not about abortion. It immobilizes sperm and prevents or delays ovulation. In other words, when taken shortly after unprotected intercourse, Plan B works as birth control, by preventing rather than terminating a pregnancy. (The F.D.A.-approved label for Plan B raises the possibility that the drug might also work by preventing a fertilized egg from implanting in the uterus to begin a pregnancy, but the National Institutes of Health has removed language raising this prospect from its Web site, and the N.I.H. biochemist in charge of research on contraception has said the language should also be taken off the label. Judge Korman called the prospect that Plan B might permit fertilization but prevent implantation “scientifically unsupported speculation.”)

The debate over the contraception-coverage mandate wasn’t part of Judge Korman’s case; that issue will be argued next month before the federal appeals court in Denver in a case brought by the owners of the Hobby Lobby retail store chain. I hope the judges who hear the Hobby Lobby case and the other such cases that are cropping up around the country are as precise as Judge Korman in defining what’s at issue: evidence-based judging to go along with evidence-based medicine. If the challengers’ real objection is to birth control, they shouldn’t be able to hide behind the “abortifacient” label.

Greenhouse is wrong that, in the cases against the HHS contraceptive mandate, plaintiffs “challenging the requirement for employer-provided health insurance to cover birth control almost invariably train their attack on emergency contraception.” There is in fact a general divide between the Catholic plaintiffs, whose objections apply to contraceptives as well as abortifacients, and the non-Catholic Christian plaintiffs, whose objections are indeed generally directed at the possible abortifacient effect of emergency contraceptives and of copper IUDs.

But let’s unpack Greenhouse’s more serious errors and omissions:

1. The HHS mandate requires employers to provide coverage of all FDA-approved contraceptives. That includes not only Plan B but also Ella and IUDs. Even if it were clearly established that Plan B can’t operate as an abortifacient (and it’s not), the question—for those employers who have religious objections only against abortifacients—would still remain whether Ella and copper IUDs can.

2. The evidence that Plan B can’t operate as an abortifacient—that it can’t operate to prevent implantation of the fertilized egg, or early embryo, in the wall of the mother’s uterus—is far less settled than Greenhouse maintains. The evidence on Ella is even more equivocal.

Judge Korman himself is much more careful than Greenhouse is. He quotes and credits a GAO report that says that Plan B has “not been shown to cause a postfertilization event” and that “the possibility of a postfertilization event cannot be ruled out.” (Slip op. at 2, 3 (emphasis added).)

Further, the recent New York Times article that Korman cites (for a limited proposition) also treats the scientific evidence on Plan B and Ella as unsettled, as its title indicates: “Abortion Qualms on Morning-After Pill May Be Unfounded” (emphasis added). We learn in the article that studies “have not established that emergency contraceptive pills prevent fertilized eggs from implanting in the womb”—not that they have established that Plan B and Ella don’t prevent implantation. The strongest assertions in the article about Plan B are hedged: “probably,” “strong evidence,” “emerging data on Plan B suggest.” The article concedes that even “[l]ess is known about Ella.” And it notes that “[s]everal scientists acknowledged that absolute proof [as to Plan B and Ella] may be elusive.”

This February 2013 report co-authored by Princeton professor James Trussell (who is a member of the board of directors of the NARAL Pro-Choice America Foundation) states (on page 7 (emphasis added)):

To make an informed choice, women must know that [emergency contraceptives] … prevent pregnancy primarily by delaying or inhibiting ovulation and inhibiting fertilization, but may at times inhibit implantation of a fertilized egg in the endometrium.

In the next sentence, the report states that the “best available evidence” is that emergency contraceptives “do not involve interference with post-fertilization events,” but it’s obvious that the authors do not regard that “best available evidence” as conclusive. (The report also engages in the usual pro-abortion rhetorical wordplay in which destruction of the fertilized egg before implantation is deemed not to be “abortifacient.” But for opponents of abortion, the morally relevant fact is that prevention of implantation destroys the life of an already existing human embryo.)

3. “Research suggests,” as that same NYT article acknowledges, that copper IUDs “can work to prevent pregnancy after an egg has been fertilized.”

4. All of this amply explains why the Obama administration, in its Tenth Circuit brief last month in the Hobby Lobby case, conceded that Plan B and Ella might act by “altering the endometrium (thereby inhibiting implantation).” DOJ Brief at 9 n. 6 (internal citation omitted).

5. Greenhouse’s deeper confusion is to fail to highlight that the legal question whether Plan B should be made available to minors and the legal question of how Plan B should be labeled are conceptually distinct from the legal question whether religious believers may hold cognizable objections to the possible abortifacient effects of Plan B—and of Ella and copper IUDs. Given the persisting scientific uncertainty about how Plan B operates, it is appalling that Greenhouse would disparage the grave moral concerns about Plan B that many Americans reasonably hold. It is equally galling that she would obscure or overlook that the plaintiffs’ objections also apply to Ella and copper IUDs. That Greenhouse evidently doesn’t care one whit about the difference between genuine contraception and destruction of the early embryo is no reason for her to seek to trample the consciences of those who do.

To recast Greenhouse: Let’s “hope the judges who hear the Hobby Lobby case and the other such cases that are cropping up around the country are [much more] precise [than Greenhouse] in defining what’s at issue.” If so, they’ll readily recognize that religious believers who oppose the destruction of the lives of unborn human beings have ample basis to object to being dragooned to provide Plan B, Ella, and copper IUDs in their health plans.


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