Bench Memos

Hobby-Horse Journalism on Hobby Lobby, Part 1

At the American Prospect yesterday, “investigative journalist” Sarah Posner filed a piece on the Hobby Lobby suit against the HHS mandate, marked by pretty indolent “investigative” habits.  Here and there Posner does manage to simulate a journalist’s fairness to her protagonists–she at least interviewed Kyle Duncan of the Becket Fund, who represents Hobby Lobby in its litigation–but she undermines her bona fides by relying solely on HHS-friendly sources when she steps away from the immediate parties to the case.  This is true both of her medical and her legal sources.  In this first post I’ll discuss the medical.

Here is Posner on the issues in the case:

Unlike Catholic plaintiffs, which oppose covering all methods of birth control, Hobby Lobby is refusing only to cover intrauterine devices and the emergency contraceptives Ella and Plan B, which they claim are abortifacients. Hobby Lobby says that its deeply held religious conviction is that “life begins at conception.” Because, it claims (contrary to medical evidence), emergency contraception and IUDs can prevent implantation of a fertilized egg, it considers these drugs and devices “abortifacients.” (Conservative activists have taken to calling the contraception coverage requirement the “abortion pill” or “abortion drug” mandate.)

Notice that it is Posner herself who, in her parenthetical remark, is absolutely confident that it’s “contrary to medical evidence” to say that any drugs or devices covered by the HHS mandate are abortifacients.  Why is she so sure?  She supplies no evidence whatsoever.  The Tenth Circuit noted that there is professional disagreement on the question, in a footnote Posner has read (she partially quotes it later in her article, but leaves this out).  Here is footnote 3 of its June 27 opinion:

There is an ongoing medical debate as to whether some of the contraceptive methods relevant to this case act by preventing implantation or fertilization. Compare, e.g., Physicians for  Reproductive Health et al. Amicus 12–13, with Ass’n of Am. Physicians & Surgeons et al. Amicus Br. at 12 & n.21.

The judges probably gave more credence than was necessary to the abortifacient deniers.  As the American Association of Pro-Life Obstetricians and Gynecologists (which was also an amicus in this case) noted in testimony and submissions to the FDA before its approval of ullipristal (or “Ella”), the drug has been classified by the European Medicines Agency as “embryotoxic at low doses,” and it can easily be taken by women who have been unwittingly pregnant for several days, with abortifacient results.  Its widespread use off-label as an abortifacient is perfectly predictable now that it is available over the counter–as is its surreptitious use by others who wish to administer it to women without their knowledge.  (See more here from AAPLOG on this lovely new poison, now over the counter to all ages.)

Posner goes to just one source for an explanation of the science in this case.  Here are Posner’s next three paragraphs, after the first one quoted above:

Dr. Anne Davis, Consulting Medical Director to Physicians for Reproductive Health (PRH), which filed an amicus brief in the case, says that the “essence of their argument is that they believe that pregnancy occurs at fertilization. No major medical organization endorses that idea.” Rather, she says, a pregnancy test is not positive until implantation has occurred.

The emergency contraceptives Ella and Plan B do not interfere with implantation, but rather with ovulation, says Davis. The copper IUD can be used for conventional or emergency contraception, but “it’s spermicidal. So the sperm don’t make it past the uterus.” There is, as PRH noted in its brief, some evidence that the copper IUD may alter the endometrial lining, thus preventing implantation. But, Davis says, fertilized eggs rarely implant, for unknown reasons, so to attribute a failure to implant to the remote possibility that it was caused by the IUD misses the point.

“They’ve got people hypnotized into thinking that fertilization is pregnancy,” says Davis. “You can believe whatever you want, you can have your own beliefs about what these things mean to you,” but “these are not abortifacients.”

Dr. Davis’s claim that Ella “do[es] not interfere with implantation, but rather with ovulation,” is contradicted by the AAPLOG submission to FDA quoted above.  Citing published research and the European Medicines Agency, AAPLOG notes that the drug “interferes with the hormone action of progesterone to prepare the endometrium for implantation and to support the early pregnancy” (my emphasis).

Herewith an aside on the business of sourcing these contested claims in journalism.  A group calling itself by the euphemism “Physicians for Reproductive Health” in today’s Orwellian environment is, by definition, pro-abortion–which is to say, willing to countenance the interruption of ”reproductive health” by the violent termination of reproduction.  Its members and spokespersons do not take an active interest in the protection of unborn human lives, and should therefore not be trusted to be interested in stating the finer points of medicine in these matters accurately.  Their interest is precisely not to care whether the unborn are killed, but instead to facilitate those deaths in the name of “choice” and “health,” and it would not be the most surprising thing in the world if they elide the difference between contraception and abortion, whatever the science says.  A group like the American Association of Pro-Life Obstetricians and Gynecologists (a recognized interest group of the larger American College of Ob-Gyns), on the other hand, which takes no position on the issue of contraception but is deeply committed to the sanctity of unborn life, is for that reason deeply interested in making sure that what passes for “contraception” is not in fact abortion.  Its interest in factual and scientific correctness is more reliable, and if it errs, it will err on the side of life.

In the first and third paragraphs just quoted, Dr. Davis engages in contemptible word games about fertilization and implantation.  Mocking the view “that pregnancy occurs at fertilization,” she says, ”No major medical organization endorses that idea.”  Posner then paraphrases her as saying that “a pregnancy test is not positive until implantation has occurred,” and in the final paragraph quotes Davis saying that opponents of the HHS mandate have been “hypnotized into thinking that fertilization is pregnancy.”

But it is Davis who is engaged in (or the victim of) hypnotism here.  It may be true that until implantation occurs, no extant pregnancy test will show a positive result.  But it is also undeniably true that from fertilization onward, a new, separate and distinct, genetically unique human being is in existence, even before implantation.  The period between fertilization–or conception–and uterine implantation is typically ten to twelve days (so say my friends Robby George and Chris Tollefsen in their authoritative book Embryo: A Defense of Human Life).  If Dr. Davis would like to claim that for several days prior to implantation, every woman carrying a new embryonic human life within her body–a new child in its smallest form–is not actually “pregnant,” she is abusing language to achieve an ideological result.  (Davis’s focus on this “implantation vs. fertilization” issue also strongly suggests that she knows full well that Ella is the abortifacient others claim it is, because of its interference with implantation.)

Let us for a moment adopt the specially tortured language of Dr. Davis.  What do you call a woman who is “not pregnant” but carrying a not-yet-implanted embyonic child in her body for ten days or so?  I would call her a mother who probably doesn’t know it yet.  What do you call that embryonic child if its life is terminated by Ella?  Aborted.

As for the Green family that owns Hobby Lobby, they do not merely have, as the Tenth Circuit put it, “a belief that human life begins when sperm fertilizes an egg.”  They have knowledge of that fact, a fact affirmed by embryology but curiously obscured by Dr. Davis.  What they believe–and what Dr. Davis evidently wants not to talk about–is that every such human life is precious and should not be willfully destroyed.

As for Sarah Posner, what she evidently believes is that you can “report” on these matters by talking to only one side about the facts of the case.


The Latest