Excuse Me? There’s No ‘Unsettled Science’ in the Contraception Challenges


Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

In addition to launching hundreds of legal challenges to the contraception mandate in the Affordable Care Act, the religious right has launched a massive public relations campaign designed to confuse and cloud the issues taken up by the Supreme Court. So far those efforts have mostly been confined to arguments of “religious liberty” and the “right” of a corporation to exercise religious beliefs, though sometimes the truth slips out and business owners admit the litigation is mostly about not wanting the government to tell them what to do. But as the Supreme Court will soon hear arguments on those challenges, those PR efforts are shifting to familiar territory for abortion rights activists—to supposed “disputed science.” And, unfortunately, it looks like the media is playing right along.

According to this piece by Reuters, the Hobby Lobby and Conestoga cases are going to tackle the “unsettled science” of contraception. Excuse me, but there is no “unsettled science” here, no “scientific dilemma” concerning when pregnancy begins beyond one created by anti-choice activists. The question, framed by Reuters as “deceptively simple” of whether certain forms of birth control prevent conception or destroy a fertilized egg, is not actually a controversy or debate within the mainstream scientific and medical community. In fact, the mainstream scientific and medical community all agree that the vast majority of emergency contraceptives don’t prevent fertilization, and that pregnancy begins at implantation. But anti-choice activists have their own “science,” framed entirely by one simple question: How can we be so sure? Armed with that “science,” they’ve now launched a campaign to confuse the public and the courts.

It’s an effective strategy for raising doubt in the court of public opinion, as anti-choice activists have shown most recently by framing unconstitutional 20-week abortion bans as “fetal pain” bans or by promoting closing reproductive health-care clinics and creating expanses of hundreds of miles of health-care deserts as important to protecting the health of vulnerable women. But by raising that doubt in the court of law, anti-choice advocates are looking for something more; they’re looking for a way to provide conservative justices political cover for a ruling in their favor.

It’s a strategy that’s been in development for some time, and one that can be traced back to the battle over the federal ban on “partial birth abortions.” In 2003, Congress passed the “Partial-Birth Abortion Act,” a law that banned a specific type of abortion procedure known as an intact D&E (dilation and evacuation) without any exception for the life of the pregnant person. The law passed in part because of testimony from anti-choice activists who argued the medical community was undecided as to whether this specific type of procedure was ever necessary to save a woman’s health. Witnesses from mainstream medical groups argued against the bill as a dangerous intrusion into medical judgment, but to no avail. The law was eventually challenged, and in 2006 the Roberts Court sided with Congress, holding that so long as a matter of science is up for debate, lawmakers are free to pick a side in that debate in passing legislation if their doing so is reasonable.

The reaction from the medical community to that case, Gonzales v. Carhart, was biting. The New England Journal of Medicine published a piece criticizing the court decision, writing “[U]ntil this opinion, the Court recognized the importance of not interfering with medical judgments made by physicians to protect a patient’s interest. For the first time, the Court permits congressional judgment to replace medical judgment.”

The American Congress of Obstetricians and Gynecologists called the decision “shameful and incomprehensible” in a statement. “This decision discounts and disregards the medical consensus that intact D&E is safest and offers significant benefits for women suffering from certain conditions that make the potential complications of non-intact D&E especially dangerous,” the statement continued. “Moreover, it diminishes the doctor-patient relationship by preventing physicians from using their clinical experience and judgment.”

Advocates for the businesses challenging the mandate are hoping the Roberts Court will apply a similar logic used in Gonzales later this month and grant business owners the kind of leeway to dispute settled scientific matters as they have given Congress. The Hobby Lobby and Conestoga plaintiffs believe three forms of contraception induce abortion—copper intrauterine devices (IUDs); all forms of Plan B, including Plan B One-Step, which is sold over-the-counter; and prescription-only ella. It doesn’t matter that the scientific community vastly disagrees, they argue. Because they, the business owners, believe pregnancy begins at fertilization and that science can never be 100 percent right all the time, they argue there should be enough evidence for the court to give them a pass from complying with the law.

As a result of courts’ willingness to grant lawmakers the kind of pass that allows science to be disputed with the legislative equivalent of a “nuh uh,” we’ve got laws that require doctors to misinform patients about abortion causing breast cancer, not to mention a deepening climate change catastrophe and science curricula in public schools that present creationist theory as a viable alternative to biology. This is the logical extension of our false objectivism, and it has dangerous consequences.

Correction: A version of this article incorrectly noted that Plan B is sold to people ages 15 and older; it is in fact available over-the-counter to people of all ages. We regret the error.

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  • Shan

    “In fact, the mainstream scientific and medical community all agree that the vast majority of emergency contraceptives don’t prevent fertilization”

    I think that needs fixing.

    • jruwaldt

      I think she probably meant “implantation.” Of course, what they really do is prevent ovulation, which is, after all, necessary before fertilization. One contraceptive, which is sometimes used as an emergency contraceptive, does prevent implantation: the IUD. That’s the only kind that an anti can say terminates a pregnancy. Of course, most doctor’s don’t consider pregnancy to start until implantation, because so many things can go wrong between ovulation and implantation.

      • Shan

        “I think she probably meant “implantation.”

        I’m sure she did, but it’s pretty crucial.

        Not to distract from the rest of the article, mind. It’s very important for the courts to recognize that the “unsettled science” argument is, as the author so succinctly put it, a just another “nuh uh” reaction from people who think their “religious liberty” entitles them to deny scientific facts that conflict with their beliefs.

  • King Rat

    This should be of interest to readers. RHRC – you might want to write an article on this one:

    HOBBY LOBBY OPPOSES BIRTH CONTROL ON OPPOSITION TO FEMALE SEXUALITY, NOT RELIGIOUS GROUNDS

    Hobby Lobby’s opposition to birth control is not religion based. It is all about controlling female sexuality:

    Beverly Lahaye Institute

    Relying entirely on the 2011 IOM Report, the Government asserts that by increasing access to contraceptives, the Mandate will promote public health by decreasing unintended pregnancies. At the risk of stating the obvious, getting pregnant is not like catching a contagious disease.

    If the Government intends to broaden the definition of ‘women’s health and well-being,’ and thus the goal of the Mandate, to include non-health related concepts such as emotional well-being and economic prosperity, then it should likewise have considered the documented negative effects the widespread availability of contraceptives has on women’s ability to enter into and maintain desired marital relationships. This in turn leads to decreased emotional wellbeing and economic stability (out-of-wedlock childbearing being a chief predictor of female poverty), as well as deleterious physical health consequences arising from, inter alia, sexually transmitted infections and domestic violence.

    American Freedom Law Center

    Thus, it has come to pass that the widespread use of contraceptives has indeed harmed women physically, emotionally, morally, and spiritually — and has, in many respects, reduced her to the “mere instrument for the satisfaction of [man’s] own desires.” Consequently, the promotion of contraceptive services — the very goal of the challenged mandate — harms not only women, but it harms society in general by ‘open[ing] wide the way for marital infidelity and a general lowering of moral standards.’ Responsible men and women cannot deny this truth.

    Eberle Communications Group, Inc., D&D Unlimited Inc., Joyce Meyer Ministries, Southwest Radio Bible Ministry, Daniel Chapter One, U.S. Justice Foundation, Virginia Delegate Bob Marshall, Institute on the Constitution, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Conservative Legal Defense and Education Fund, and Policy Analysis Center

    Stripped of its “evidence-based” facade, the IOM Committee Report encourages amoral recreational sex without reproductive consequences to be the optimal “quality of life” and “life course orient[ation]” for all American women.

    The IOM Committee’s message is unmistakable. Female sexual activity without risk of pregnancy is to be encouraged by the contraceptive mandate, not only by making a wide range of contraceptives available, but by an education and counseling program designed to ensure that more and more women do not get pregnant unless “at the point of conception” they want to. This mandate is grounded in the “opinion” of the IOM’s 16-member committee that a woman’s “health and well-being” are adversely affected by the risk of an unwanted pregnancy.

    Westminster Theological Seminary

    [The] government’s argument goes, the Mandate promotes women’s health because making abortifacients cost-free will enable women who want to be sexually active but do not want to be pregnant will avoid the risks of self-destructive behaviors by stopping pregnancies that may later contribute to their engaging in such behaviors.

    The motivation by those using abortifacients is to avoid pregnancy, not to avoid their own supposed, possible, subsequent self-destructive behaviors that might attend an unwanted pregnancy. Therefore, by contending that using abortifacients will guard against the adverse health effects of self-destructive behaviors by avoiding pregnancy, the government, in effect, is purporting to protect women’s health without their knowing it.

    The Mandate does not purport to protect women from discrimination based on their being women or based on their being pregnant. What it purports to do is to provide women a cost free way to avoid exercising an aspect of their womanhood — their unique capacity to bear children. Promoting gender equality in that way does not, and cannot, legitimize the Mandate. But beyond that, abortifacient use can never achieve gender equality when it comes to pregnancy avoidance. Abortifacients can terminate an existing pregnancy.

    http://www.becketfund.org/hobbylobbyamicus/

    • lady_black

      In other words, women are for bearing children. They have no right to non-procreative sex with a spouse of anyone else, and certainly no right to expect anything out of life than getting married and pooping out baby after baby, which is then chained to her until she drops dead from childbearing and exhaustion. These are moldy old religiously based prejudices, and will not help their case.

    • Ella Warnock

      If millions of women all over the world have the capacity to bear children, then just how bloody “unique” can it possibly be?

      • King Rat

        Well, according to Emmet from last night, it’s perfectly *ordinary*, because so many women do it:P

        Therefore, it is not a great burden, because it’s what women were made for:P

        • Ella Warnock

          Yep, and biology = destiny is the same old shitty argument it always was. Did you notice how he never answered either of my questions about whose property snowflake embryos are? If they’re someone’s property while they’re in storage, then they’re STILL someone’s property when the location changes to a uterus.

          • King Rat

            Yep. He ignored you. He ignored me too when I showed him the list of pregnancy side effects + the article on sentience.

            When people ignore me I tend to get obnoxious and repaste the entire comment over and over again to get them to acknowledge it.

            Is that ok? Or do I look like a jackass, spamming the same essays over and over:P

          • Ella Warnock

            No, I think it’s okay. They’re being obnoxious, and cowardly, by not addressing it.

          • King Rat

            Veiled in Dance is lecturing me over on LJF about the amazing complexity of pre-natal development, and how pro-choicers are woefully ignorant of ‘science’ because we have the temerity to say that a non-sentient non-sapient embryo is a blob of tissue.

            Apparently, it has lots of body parts! And a developing neural system and organs! Therefore, it can’t be a blob! And it’s development is gradual, so really, why should we distinguish between stages of development!

          • Ella Warnock

            Aaaaand whether it’s a blob or something with lots of body parts (orillly? cuz I have lots of body parts TOO!), if it’s unwanted, then it’s unwanted. I could really give a shit about the science, quite frankly. Science doesn’t pay the freight for a kid that I don’t want, now does it?

          • King Rat

            Shut up, you’re just a uterus.

            FFS

          • Ella Warnock

            And OMG, he told you to shut up! That was priceless! Totally ran out of rationality. Just hey, woman, shut up!

          • King Rat

            Yeah, I forgot about that gem.

          • King Rat

            I don’t like VID. She is a smug, morally superior twit.

          • Ella Warnock

            Yes, she’s quite pretentious.

          • King Rat

            I am debating whether or not to show her my two essays on fetal brain development at 24 weeks.

            I might just wait a bit. Once Anat and Niemand show up they will rip her a new one.

          • Ella Warnock

            The lovely Feminerd is up to bat right now.

          • King Rat

            Now she is acting purposely obtuse and pretending that a newborn uses the same methods of survival as an embryo

          • lady_black

            LOL. Is she crazy or just stupid?

          • King Rat

            Please…do your thing LB, and put this twit in her place:

            http://www.patheos.com/blogs/lovejoyfeminism/2014/03/the-totally-unoriginal-atheist-case-for-abortion.html#comment-1286004234

            her chat history is public, so you can read all the stupid shit she’s been saying

          • King Rat
          • King Rat

            I like the way you explain things. I know a lot of the same things – about viability of the prenate, and so on, only I do a shit job of explaining. You are able to go into greater detail, which adds to your argument:P I know only the very basics.

          • King Rat

            LOL, I wrote up how I hate VID in the wrong place

            Im an idiot

            Oh well, its true

          • lady_black

            For the same reason we distinguish between children and adults. They are at different stages of development too. So shouldn’t children be able to be drafted into the military, smoke tobacco and drink alcohol, or get married? Rubbish, utter rubbish. If it cannot survive untethered to the body of another person, it’s human tissue, not a human being. No different than a tumor or a skin tag.

          • King Rat

            She is now trying to say that it isn’t any more dependent on another person’s body than a newborn.

            However, she had previously made the point that pregnancy is unique, and that we don’t kill people just because they temporarily need something to survive.

            She’s a dishonest lying twit.

            I said as much in the main chat room, by accident. I was complaining to another poster.

          • L-dan

            My goodness, really? It’s no more dependent than a newborn? Well…just gently pull it out and give it a bottle of formula then. Problem solved!

          • King Rat

            She is a smug, superior, self important, dishonest twit. TY.

          • L-dan

            Couldn’t resist, followed your other link to toss in on that one. Honestly, she doesn’t want to make abortion illegal, which is great. Just really wants everyone to agree that it’s a horrible thing and morally complicated. bleh.

          • King Rat

            I prefer this community to patheos blogs. Patheos can be fun, but there is a lot of egotism there.

          • BJ Survivor

            For some it is and for others it’s just not. It is not responsible to birth children that you don’t want or haven’t the means to care for. It’s not responsible to birth children when doing so will compromise the security of the children one may already have. It’s entirely responsible to delay childbearing until such time as you have the emotional and financial security to provide for a child. It’s entirely responsible to never have children when you know you don’t want them and could never provide such things for them. Personally, I could give a fuck about insensate clusters of human tissue; better that they not be born and never be able to suffer than be born and suffer.

            I was flabbergasted at the admission by one of the pro-lifers (who doesn’t want to outlaw abortion) that when she had a pregnancy scare, she felt obligated to gestate but was hoping that she would miscarry…I have no words for the complete disconnect there. Apparently, it’s okay to wish death upon your “unborn child.” WTF?

          • King Rat

            That was Savvy, and she claims to be an expert on critical thinking – she even teaches it.

          • BJ Survivor

            Wha….?! Does she not understand that love is a biological mammalian need? Does she not understand attachment disorder, an autism-like syndrome that occurs in neglected children? Why would you want such a thing for anyone?

          • L-dan

            That doesn’t surprise me at all. In an environment where you feel abortion is a bad thing morally, and you want to feel that you’re a moral person, you construct that sort of thing. Where you feel that the moral thing to do is carry it, but secretly hope for a miscarriage to ‘let you off the hook.’ Then *you* didn’t have to do it or make that decision, but still get the outcome you’d have had if you did.

            When I was petsitting (and, frankly, with some of my own early pets), I saw time and time again pets who were suffering and probably should have been euthanized (like the one that dropped of ongoing kidney failure on my watch…woo was that fun), but it was too hard for those who were close to them to make that call. Are they suffering *enough* to justify it? Am I seeing good days that aren’t there because I don’t want to? And you could almost hear the undercurrent of “if they just die peacefully in the night, I don’t have to make that decision.”

            I seldom underestimate the human capacity for illogic and inconsistency.

          • King Rat

            Its the same sort of thing where they argue that letting your toddler die because you won’t donate bone marrow is morally acceptable, but removing an embryo from a uterus is genocide.

            What kind of sick fuck would not consider it problematic to just let your kid die? And no, ‘ other people can donate’is not an excuse.

          • L-dan

            Yeah. I mean, I think that they totally have the right to not donate to their toddler, though I can’t imagine actually doing that. I don’t even have kids and I have trouble imagining letting my imaginary toddler go like that.

            That said, I think legislating a requirement that you must donate body parts to your family members would be the wrong way to go. Bodily autonomy is important.

          • King Rat

            I don’t think that they truly believe that letting your kid die is moral, however, they must pretend that it is, to bolster the narrative that pregnancy is unique, and that to end it is murder most foul. Even though in both cases your kid is dead – they have to make the distinction to plead for the fetus and subjugate only uterus owners.

          • BJ Survivor

            Bingo. If they claim that organ donations of parents to their born children should be mandatory, why that would apply to men, and we simply can’t have that! A man’s right of bodily self-ownership is sacrosanct.

          • Shan

            Just imagine how hard the MRA’s would squeal about THAT one.

          • King Rat

            I see how you added the torture clause of the UN Declaration, nice!

            I actually got the idea from here, I suggest you read it if you have the time, it helped me to present a more coherent, logical argument:

            http://praxeology.net/RTL-Abortion.htm#VII

            This guy is a libertarian too, which is awesome, because most of the pro-lifers we debate are very ‘libertarian’ (for fetuses only).

          • BJ Survivor

            OMG, I have lost all patience with that dipshit. Why do these fuckwits pretend not to understand what a horrid violation of human rights that forcing women to remain pregnant against their wills is? They get it in all other circumstances, so it’s not that they do not understand bodily autonomy, they just don’t think it should apply to pregnant people. Fuck that. I am through being civil to assholes who believe that women are a sub-class of human being somewhere below death-row inmate and corpses. Just FUCK THAT.

          • King Rat

            I agree. However, don’t call her names unless you want to get banned. You can however say that her ideas are stupid.

          • BJ Survivor

            I am humbled, sensei. I will keep it civil and will strive to insult her ignorance and sense of superiority without resorting to profanities.

          • L-dan

            You can cut a blastocyst in half and get two people. That’s not a trait we usually associate with ‘person’. You can smush two of them together and get one person (chimera). Again, not something we can do with actual people.

            It can also go rather wrong and develop into a tumor instead of a baby. For all the various diseases that people get, there are none that cause recognized people to develop into something that is recognizably not-people. You can get cancer, and part of your lung will become not-lung. But even with massive metastasis, it will not turn you into a tumor.

            There’s a lot more to being a person than just a matter of ‘oh it’s all a solid line of development.’

          • King Rat

            People who are good at writing, like Feminerd, will restate the same thing over and over with different wording. I don’t have the patience. It’s much easier to just repaste the same studies repeatedly.

          • Ella Warnock

            Well, we can’t all be Feminerd. ;->

        • Jennifer Starr

          Where did he post this?

        • Jennifer Starr

          I remember a post once from a gentleman (can’t recall who or where), which read something like ‘The human female is designed to safely give birth multiple times’. Sounded like he was talking about breeding stock instead of people–I wonder if they realize just how disgusting an attitude like that is.

        • http://plumstchili.blogspot.com/ Plum Dumpling

          Really. In Africa childbirth is the leading cause of death for young women age 15-19. Just another sexpig sadist. Nickel a dozen.

  • anja

    It doesn’t really matter how they work just that they effective, safe, and readily available.

    • BJ Survivor

      Right? Even if hormonal contraception works like the forced-birth fuckwits claim it does (by preventing implantation) I’m supposed to care that a microscopic bundle of human cells doesn’t get to attach itself to my uterus because…why? Still contraception since it prevents pregnancy and, thus, abortion (since any pregnancy I experience WILL result in induced abortion).

      • BJ Survivor

        I no longer have a uterus (yay!) since June 28 of last year, but I am still a woman and will always fight for women to be considered fully-autonomous human beings!

  • Ella Warnock

    Testing. Technical difficulties. Thanks ever so, Disqus, you’re such a peach. : p

    • King Rat

      You and the other Ella Warnock the same person?

      • Ella Warnock

        Yup. Raw Story was hanging up all my comments from this account in moderation, or at least that’s what it was looking like. Some of them showed up and some disappeared. The other account was going through with no problem.

        • King Rat

          Was not sure. Did not sound like you. Though the pearl clutching was a hint.

          • Ella Warnock

            I’m a little loopy from painkillers and muscle relaxants. My back went on strike Friday morning. Be glad when this storm passes.