Bench Memos

On Embryo-Killing “Contraceptives”

In reading Linda Greenhouse’s reflections on the HHS mandate cases, I was surprised to run across her assertion, in passing, that the Hobby Lobby plaintiffs are incorrect to believe that some FDA-approved methods of contraception “act after fertilization to prevent a fertilized egg from implanting and continuing to develop.” After all, the Obama administration itself, in its certiorari petition in Hobby Lobby, approvingly cited the FDA’s Birth Control Guide for the propositions that an IUD “may prevent the [fertilized] egg from attaching (implanting) in the womb (uterus)”; that Plan B “may also work … by preventing attachment (implantation) to the womb (uterus)”; and that ella “may also work by changing the lining of the womb (uterus) that may prevent attachment (implantation).” (Cert petition at 10-11 n. 5.)

Greenhouse contends that “a brief filed by a coalition of leading medical authorities demonstrates” that FDA-approved methods of contraception can’t “act after fertilization.” But a careful reading of the brief shows that it demonstrates no such thing—and in fact acknowledges the opposite. (The lead amicus on the brief is Physicians for Reproductive Health, so I will refer to the brief as the PRH brief.)

The PRH brief confusedly interweaves two distinct arguments. One argument (which is not the focus of this post) is that drugs that, in addition to preventing contraception, also sometime operate to prevent implantation in the uterus of a fertilized egg should not properly be referred to as abortifacients. The basic argument is that the term abortifacients should be reserved for drugs that operate after pregnancy (i.e., implantation). The PRH brief even contends that the word contraceptive should cover the effect of preventing implantation of a fertilized egg. But as I’ve explained before (in the footnote to this post), I don’t see how an effect that operates after conception can fairly be described as contraceptive. As between abortifacient and contraceptive, the former term better captures the fact that this second means of operation destroys the life of an already existing human embryo. (But perhaps we could all just agree on the term embryo-killing?)

The PRH brief’s second argument, set forth initially in seemingly absolute terms, is that “scientific research shows that Plan B and ella both function by inhibiting or postponing ovulation; they do not prevent [post-ovulation] fertilization or implantation.” (P. 9.)

The PRH brief, however, undercuts its own argument. Six pages later, it claims only: “As established by the weight of the evidence, LNG and UPA [the active ingredients in Plan B and ella, respectively] function primarily, if not exclusively, by inhibiting ovulation, thereby preventing fertilization from occurring.” (P. 15 (emphasis added).) In other words, the PRH brief here claims only that inhibiting ovulation is the primary effect of these contraceptives, and even that claim meets only the low standard of “the weight of the scientific evidence”—well short of compelling scientific proof.

The PRH brief goes on to assert that “current evidence shows” that Plan B “is not effective after ovulation has already occurred.” (P. 15.) Again, that phrasing is far weaker than its initial statement of its argument. Ditto for the brief’s assertion that “there is no evidence that [ella] affects implantation” (p. 16)—which is not equivalent to the proposition that there is compelling evidence that ella does not affect implantation. Indeed, the reader learns a page later that “whether, in fact, ella has an effect sufficient to prevent implantation of a fertilized egg is unknown.” (P. 17 (emphasis added).)

Further, it seems to have escaped Greenhouse’s notice that the PRH brief’s second argument doesn’t even cover IUDs. The PRH brief acknowledges that the copper IUD, when used as emergency contraception, “could also act to prevent implantation, due to copper’s effect of altering molecules present in the endometrial lining.” (P. 19 (emphasis added).)

In sum: Contrary to Greenhouse’s assertion, the PRH brief establishes that the Hobby Lobby plaintiffs are right to believe that copper IUDs can operate to prevent implantation (and thus to kill the developing human embryo). The PRH brief also reveals, if backhandedly, that the state of the science on whether Plan B and ella can also operate to prevent implantation is not definitively settled—and thus, given their objections to facilitating the destruction of human embryos, amply justifies the Hobby Lobby plaintiffs in resolving the scientific uncertainty against providing coverage of Plan B and ella (in addition to copper IUDs).

(I don’t mean by this post to suggest that a person’s religious beliefs must meet some scientific test in order to be protected under RFRA or the First Amendment. That is plainly not the case. But insofar as Greenhouse and others seek to disparage the Hobby Lobby plaintiffs as a bunch of Flat Earth yokels, their effort is ill-founded.)

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