Why Are Courts Allowing Redefinitions of Emergency Contraception?

May 14, 2014Andrea Flynn

This post is the third in the Roosevelt Institute's National Women's Health Week series, which will address pressing issues affecting the health and economic security of women and families in the United States. This post considers the problems created when judges accept misinformation about certain kinds of birth control as fact in the courtroom.

In courtrooms across the country the Affordable Care Act’s (ACA’s) “contraceptive mandate” is being hotly contested as a violation of religious liberty. The Supreme Court recently heard two such cases – Conestoga Wood and Hobby Lobby – and is expected to deliver a decision by the end of next month. While larger questions of the religious freedom of corporations loom, underlying claims about emergency contraception threaten to confuse the general population and stigmatize a contraceptive method many women rely on for their health and wellness.

More than 100 cases have been filed against the contraceptive mandate by non-profit organizations, for-profit companies, states, and lawmakers. Plaintiffs in each of the cases argue that the mandate is a violation of their religious liberty, many explicitly stating their opposition to IUDs and emergency contraception (EC), which they define as abortifacients (drugs that induce abortion).

According to the Center for Reproductive Rights, judges have responded differently to the varying definitions of EC. In extreme cases judges have agreed with the plaintiffs’ classification of EC as a method of abortion, and in others judges have clarified that the ACA requires coverage of contraception but not of abortifacients. Most commonly, judges are unaware of or unbothered by plaintiffs’ intentional misuse of the term, and end up relying on the plaintiff’s definition in their decision.

In Domino’s Farms Corp v. Sebelius, the judge included the following statement in his opinion granting the company a preliminary injunction against the mandate: “FDA-approved contraceptive medicines and devices include barrier methods, implanted devices, hormonal methods, and emergency contraceptive ‘abortifacients'…” Other cases and opinions include variations on this same theme.

There are two important things to know. First, the ACA does not mandate or provide coverage for abortions. Second, EC and the IUD do not cause abortions. A quick recap: The most common forms of EC – Plan B and Ella – can be taken after sex and prevent pregnancy primarily by delaying or inhibiting ovulation. (For those who are more visually inclined, here’s a great video). Multiple studies have shown that Plan B works by preventing ovulation, not by preventing a fertilized egg from attaching to the womb. (In Europe, the label for that drug was recently changed to reflect this research.) The copper IUD, which is most often used as a long-acting birth control method, can also be used as a form of emergency contraception and can prevent sperm from fertilizing an egg. Conservatives have seized on research that has shown that it might be possible for Ella and the IUD to prevent the implantation of a fertilized egg. That research, however, is not conclusive.

The onslaught of legal challenges – and some of the judicial opinions that are emerging from them – is problematic for a number of reasons. First, the language used in these cases, often quoted by the media and advocates, adds to the drumbeat of misinformation that confuses the general public. These cases reinforce the common misperception that EC is really just a different form of mifepristone and causes early abortions. This contributes to the stigma and shaming that women experience when they, for a number of reasons, need to access EC.

Second, singling out EC and IUDs suggests that these methods are not part of the socially and medically accepted continuum of family planning – methods that women rely on every day to make informed decisions about their health. The cases conflate the IUD and EC and ignore the fact that many women choose IUDs as their preferred method of family planning. Indeed, recent studies have shown that when cost is not a factor, 75 percent of women prefer a long-acting birth control method, such as the IUD. As Solicitor General Verrilli stated during the recent Supreme Court oral arguments: “We’ve got about two million women who rely on the IUD as a method of birth control in this country. I don’t think they think are engaged in abortion in doing that.”

As the contraceptive mandate challenges are litigated, and as medically inaccurate language about EC is incorporated into complaints, news coverage, and even into judicial opinions, EC risks becoming pushed further to the margins. We should be especially concerned when judges accept at face value plaintiff’s characterizations of EC. Their opinions carry weight and authority and become truth in many people’s minds.

The value of and right to EC should not be debated. It is a standard component of reproductive health care, approved and regulated by the FDA, and all women should have access to it regardless of their employer’s religious beliefs.

At the heart of all of the challenges to the contraceptive mandate are questions of religious liberty, and the rulings on those issues will reverberate far beyond birth control. But central to these challenges are also fundamental concerns about women’s rights and ability to take care of themselves and their families. Judges should be mindful of how their decisions impact not only women’s legal access to contraceptive methods, but also how the language they use shapes public knowledge about reproductive health care. The public debate about reproductive health care is already rife with misinformation. Women don’t need more.

Andrea Flynn is a Fellow at the Roosevelt Institute. Follow her on Twitter @dreaflynn.

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