Plan B and Ella Are Not Abortifacients, But False Claims May Hold Up 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.

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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  • Andrew

    So, if the evidence in support of your thesis runs up against evidence that shows these things do indeed cause abortion, then why the insistence that any public policy be made either way? Wouldn’t it be better to wait until the science is settled?

    • http://twitter.com/JenGStarr Jennifer Starr

      The science has been settled for quite a while now.

      • HeilMary1

        Funny how fetal idolators whine about their disputed claims regarding Plan B and Ella, yet refuse to ban or give up among themselves abortifacient tobacco, coffee, tea, Holy Wine, industrial pollution and Pentagon bombs that kill pregnant Muslims.

        • http://powerandcontrol.blogspot.com/ M. Simon

          You know I fervently support Abortion. Not because I like it but because I don’t like Government involvement in sex. Government does not do sex well. However, you have to consider that there are some Muslims who have never left the Nazi Era. An era when a wide swath of Islam supported Hitler. Mein Kampf is still a best seller in Islam. That faction of Islam has declared war on the rest of us. Just because we have not officially declared war back does not mean we are not at war. Pentagon bombs used to kill pregnant Germans. No one shed a tear at the time.

          You might want to look up Hitler’s best buddy – the Mufti of Jerusalem. And then consider that Arafat called him “uncle”. Also searching “Hitler Muslim Brotherhood” might prove interesting.

          • http://www.facebook.com/maryanna.price Maryanna Price

            lolquoi?

      • http://powerandcontrol.blogspot.com/ M. Simon

        You have to weigh this against “Climate Science” which was supposedly settled. And then we have 17 years of rising CO2 but no warming – according to the head of the IPCC. Supposedly the opponents of “Climate Science” had an agenda. Evidently having an agenda does not prevent you from being correct. At least occasionally.

        Science is never settled.

        After 200 years Newton was proved wrong – although good enough for most uses.

        • Sagrav

          Actually, global temperature averages have risen, just as Climate Change models have predicted. In addition, seasonal polar ice melts are occurring more rapidly than during the rest of human history and the oceans are rapidly absorbing excessive amounts of CO2 and turning acidic. Just as Climate Change models predicted. And no, this is not due to some solar variation. Climate scientists have already accounts for variations in solar output.

          We are causing changes that will inevitably lead to disaster for creatures living on planet Earth. The longer we waste time rehashing the same old arguments that have been settled for years, the harder it is going to be to change course.

          • http://powerandcontrol.blogspot.com/ M. Simon

            Uh. You might want to check your facts. The head of the IPCC said no rise for 17 years. And if you look at the actual data – falling since 2005 IIRC. And the polar thing? Well that is driven by variations in water flows. So it is not terribly significant re: air temps or surface temps.

            And ya know – if you look at your climate scare history we get these scares about every 30 years alternating cooling and warming. Since 1895. This one has about run its course. The next scare will be cooling. If you change your stance now you can be on the leading edge of that one.

            No need to change course if it is ocean oscillations (AMO, PDO, etc) driving the changes and not CO2. In fact if CO2 has any significant effect we need to burn more stuff faster to prevent the next – ice age – scare.

          • sisterfunkhaus

            Uh, I just read their last report from 2007 and they said it definitely is happening and it is caused by humans. What the hell are you talking about? They don’t release the next one until 2014, and I can assure you that whatever site tells you they know what is in it, is full of it. You are totally just making stuff up. 676 climate experts had input. I think they probably know far more than some guy who sits around making sh!t up, becasue he wants to look right when he isn’t.

        • sisterfunkhaus

          What? They have risen. You are making things up.

    • Arekushieru

      It runs up against ‘religious’ science. If people are supposed to start accepting religious science, then religious people should start accepting evolutionary theory when it runs up against creationism. Whoops. Also, the BULK of evidence supports this. Are you saying that just because some quack scientists came up with another theory that this should be given equal weight? Uh, HELL no.

      • http://powerandcontrol.blogspot.com/ M. Simon

        Well you have to consider that in Einstein’s time a lot of scientists considered him a quack.

        Science is never settled.

        Science is not like religion. It can be in error.

        • sisterfunkhaus

          Are you saying that religion is never in error? If so, wow. Just wow.

    • Jodi Jacobson

      Simple: All the evidence shows emergency contraception inhibits ovulation and therefore prevents fertilization in the first place; moreover, evidence shows it has NO effect on an egg that has been fertilized. Without a fertilized egg to implant in the uterus, you can’t get pregnant. And you can’t have an abortion if you are not pregnant.

      Their “evidence” is about as good as “my evidence” that the moon is made of cheese. Except NASA knows better.

    • http://www.facebook.com/ella.warnock.7 Ella Warnock

      It wouldn’t make any difference to me – and many other women – if there is a fertilized egg that doesn’t implant. I don’t want to have a kid, so I don’t have one. If Plan B or Ella doesn’t “catch” and flush a fertilized egg, then I just end up having a termination later in the pregnancy. Not that either one of those actions are acceptable to anti-choicers, but MY choice, as a woman, is a course of action that happens naturally anyway. I don’t know how many fertilized eggs may have failed to implant when I wasn’t on birth control; why would I care if the same thing happened ON birth control? Not wanting to be pregnant means exactly that. The problem is that anti-choicers are increasingly unaccepting of a woman’s choice to NOT HAVE CHILDREN AT ALL, to never be pregnant, and to reject the role of motherhood if it’s not right for her. There are a growing number of women out there just like me. Get over it, and get used to it.

      • HeilMary1

        And yet if impoverished and/or non-white women have kids that need assistance, the same fetal idolators fume about those “greedy leeches”.

        • http://powerandcontrol.blogspot.com/ M. Simon

          I keep telling them that they act against their own interest. They don’t listen. Funny.

      • http://powerandcontrol.blogspot.com/ M. Simon

        Yes.

      • http://powerandcontrol.blogspot.com/ M. Simon

        I’m with you. Evolution will eventually fix the problem if only women who want children reproduce.

        Once you reach old age things look a bit different though. I’m 68.

      • Dezzydez

        Preach it!! I’ve taken Plan B a couple times. I do not care whether it is an abortion or not. It doesn’t make a difference when you do not want a kid. The outcome was that I didn’t get pregnant, that’s all I care about.

  • http://powerandcontrol.blogspot.com/ M. Simon

    I side with you on keeping abortion legal. However, I think you will find that the Affordable Care Act is not affordable.

  • http://www.facebook.com/Geekspeeker Laura Moody

    I am absolutely tired of religious beliefs standing in the way of reason and science. Pseudoscience with a hidden agenda should not be allowed to damage the health and emotional well being of American women who require birth control. If YOU want to state your bible is inerrant and the actual word of God, that’s fine. But I absolutely believe the earth is round, that dinosaurs and man did not coexist at the same time, and that the earth revolves around the sun. And, Freedom of Religion also means Freedom From Religion. Don’t want the pill, don’t take it! But BLOCKING its use by another person just because you EMPLOY them? Who the hell do you think you are???

    • sisterfunkhaus

      You are awesome.

  • sisterfunkhaus

    I’m totally confused how any of this violates anyone’s religious liberty. Are the people being forced at gunpoint to get these drugs and give them to their wives after sex? Something being made available is not the same as violating a liberty.Not offering violates the liberties of people who want it.

    • GoodOne

      @sisterfunkhaus After slogging thru a few vids, and perusing a few of their sites, I gather they argue that making them pay for it directly or indirectly violates their religious freedom because they find the particular services as gravely immoral. They also argue that these services are ubiquitous and their not paying for it will not make it unavailable for those of us who want to avail ourselves of said services.

      In other words, their not paying does not make it unavailable since it is widely available now. Since these things/services they say are clearly in violation of their religious beliefs they say do not make them participate in it.

  • Heather

    My healthcare provider today told me that she would not be able to prescibe me plan B because it was against her religion. She then wrote me a perscription for condoms and mentioned that when I got a period she would perscribe birth control. I also have other medical issues that even make it hard for me to step ouside my own front door. This same provider told me that I suffer from social anxiety and OCD. That being said I told her that it was exremely difficult for me to even go to her office for treatment and that going to plan parenthood would cause me emotional distress due to the fact that their waiting area is always full of people.

    I felt so embarrassed for even asking for plan B. I even felt ashamed. I even feel that she was contradicting herself when she refused to perscribe plan B, which is used to prevent pregnancy, not abort. Then offered to prescribe oral birth control, which is also used to prevent pregnancy, not abort. I feel descriminated against as a woman who was refused the right to choose.

    Is there anyone out there who could help me with this issue. Can my provider refuse to prescribe me plan B based on their own personal religious beliefs an then offer birth control. What about my rights as a woman, a patient and my religious beliefs and morals. Aren’t I too, protected under the constitution or law. I read that providers cannot deny Emergency contraceptives based on their religious beliefs in a emergency situation. That being said, Am I being violated since emergency contraceptives are time senitive and need to be taken in a timely manner in order to prevent ovulation. Doesn’t that constitute an emergency. Isn’t that why the medication is called “Emergency Contraceptive”. Please someone, give me some insight. Do I have any legal rights?

  • Phil

    “True, I was born guilty, a sinner in my mother’s womb from CONCEPTION.” Psalm 51

    Just some spiritual food for thought for humble women. Pride goes before the fall. Consider, all posters here are spiritual beings created by God, for God, and to spend all eternity with God IF you can overcome the appointing of your mind as the center of the universe, follow and obey the Son of the Living God. He offers Eternal Life after death. The pro-death and abortion minded egos of this thread could care less where you spend all eternity.

    Not easy, pride must go, and FAITH and REASON (not science and reason) must prevail.
    “IN THE FULLNESS OF TIME, GOD REVEALED HIS PLAN AND WILL FOR THE SALVATION OF MANKIND IN JESUS CHRIST AND HIS CHURCH.”
    Certainly you do not have to accept God, but you will have to accept the CONSEQUENCES of rejecting God. God is BOTH MERCIFUL, and JUST – and there will be a Judgment. Not a bad idea to quash the ego, and start thinking about what happens when sister death comes knocking at your door in a short while.

    Choose.

    “Stop for a moment and reflect on yourselves and on the transience of this your earthly life. What do you want? Which way do you want to set out on?”

    Sister Faustina’s Vision of Hell

    “I, Sister Faustina Kowalska, by the order of God, have visited the Abysses of Hell so that I might tell souls about it and testify to its existence…the devils were full of hatred for me, but they had to obey me at the command of God, What I have written is but a pale shadow of the things I saw. But I noticed one thing: That most of the souls there are those who disbelieved that there is a hell.” (Diary 741)

    “Today, I was led by an angel to the Chasms of Hell. It is a place of great torture; how awesomely large and extensive it is! The kinds of tortures I saw:

    The First Torture that constitutes hell is:
    The loss of God.
    The Second is:
    Perpetual remorse of conscience.
    The Third is
    That one’s condition will never change.
    The Fourth is:
    The fire that will penetrate the soul without destroying it. A terrible suffering since it is a purely spiritual fire, lit by God’s anger.
    The Fifth Torture is:
    Continual darkness and a terrible suffocating smell, and despite the darkness, the devils and the souls of the damned see each other and all the evil, both of others and their own.
    The Sixth Torture is:
    The constant company of Satan.
    The Seventh Torture is: Horrible despair, hatred of God, vile words, curses and blasphemies.
    These are the Tortures suffered by all the damned together, but that is not the end of the sufferings.

    Indescribable Sufferings
    There are special Tortures destined for particular souls. These are the torments of the senses. Each soul undergoes terrible and indescribable sufferings related to the manner in which it has sinned (unrepentant abortions, homosexuality, fornication, etc.).

    There are caverns and pits of torture where one form of agony differs from another. I would have died at the very sight of these tortures if the omnipotence of God had not supported me.

    No One Can Say There is No Hell
    Let the sinner know that he will be tortured throughout all eternity, in those senses which he made use of to sin. I am writing this at the command of God, so that no soul may find an excuse by saying there is no hell, or that nobody has ever been there, and so no one can say what it is like…how terribly souls suffer there! Consequently, I pray even more fervently for the conversion of sinners. I incessantly plead God’s mercy upon them. O My Jesus, I would rather be in agony until the end of the world, amidst the greatest sufferings, than offend you by the least sin.” (Diary 741)

  • Heather

    My healthcare provider today told me that she would not be able to prescibe me plan B because it was against her religion. She then wrote me a perscription for condoms and mentioned that when I got a period she would perscribe birth control. I also have other medical issues that even make it hard for me to step ouside my own front door. This same provider told me that I suffer from social anxiety and OCD. That being said I told her that it was exremely difficult for me to even go to her office for treatment and that going to plan parenthood would cause me emotional distress due to the fact that their waiting area is always full of people. My pharmacy told me that they can’t dispense it to me until I bring them an order from my doctor. I can’t purchase it because I am income sensitive due to losing my job.

    I felt so embarrassed for even asking for plan B. I even felt ashamed. I even feel that she was contradicting herself when she refused to perscribe plan B, which is used to prevent pregnancy, not abort. Then offered to prescribe oral birth control, which is also used to prevent pregnancy, not abort. I feel descriminated against as a woman who was refused the right to choose.

    Is there anyone out there who could help me with this issue. Can my provider refuse to prescribe me plan B based on their own personal religious beliefs an then offer birth control. What about my rights as a woman, a patient and my religious beliefs and morals. Aren’t I too, protected under the constitution or law. I read that providers cannot deny Emergency contraceptives based on their religious beliefs in a emergency situation. That being said, Am I being violated since emergency contraceptives are time senitive and need to be taken in a timely manner in order to prevent ovulation. Doesn’t that constitute an emergency. Isn’t that why the medication is called “Emergency Contraceptive”. Please someone, give me some insight. Do I have any legal rights?

  • Phil

    When sister death comes knocking at the door, where then will the egos that support killing unborn and defenseless children in their mother’s womb hide? Then will the Book of Life be opened, and the goats will be separated from the sheep, and eternity will begin.
    Without repentance, how can one’s ego demonstrate gratitude for the gift of LIFE?
    Not possible. Most folks today speak of abortion as a ‘choice’ or ‘right.’
    The Lord of Lords will have the last word.
    “True, I was born guilty, a sinner in my mother’s womb from CONCEPTION.” Psalm 51.
    However, repent while time is on your side ladies:
    “Though your sins be as scarlet, they shall become white as snow.”