Submitted by Elaine Magliaro, Weekend Contributor

Back in March of this year—during oral arguments in the Hobby Lobby case—Sahil Kapur (Talking Points Memo) said he thought that the conservative Supreme Court Justices “appeared broadly ready to rule against the birth control mandate under Obamacare.” He added that “their line of questioning indicated they may have a majority to do it.” Kapur reported that Chief Justice Roberts and Justices Scalia and Alito “expressed no sympathy for the regulation while appearing concerned for the Christian business owners of Hobby Lobby and Conestoga Wood who said the contraceptive mandate violates their religious liberty and fails strict scrutiny standards under the 1993 Religious Freedom Restoration Act (RFRA).”

During oral arguments, Justice Scalia said, “You’re talking about, what, three or four birth controls, not all of them, just those that are abortifacient. That’s not terribly expensive stuff, is it?”

There are a couple of things I think Justice Scalia should know. First, the four contraceptive methods that Hobby Lobby objected to paying for—Plan B, Ella, and two intrauterine devices—are not abortifacients. They do not prevent the implantation of a fertilized egg into the uterus—which the owners of Hobby Lobby consider to be abortion. Instead—according to the Food and Drug Administration—the four contraceptive methods in question prevent fertilization of an egg. Second, the cost of intrauterine devices can be quite considerable—especially to a woman working for minimum wage or for a company like Hobby Lobby.

Plan B is also known as the morning-after pill. Ella, the week-after pill, actually works for just five days after unprotected sex. Both of these drugs are classified by the Food and Drug Administration as contraceptives. Neither is the same as the abortion drug RU486, or Mifeprex—which isn’t considered a contraceptive and isn’t covered by the new insurance requirements.

Plan B, Ella and the Cost of IUD’s

Susan Woods, a professor of health policy at George Washington University and a former assistant commissioner for women’s health at the FDA, has been frustrated by the constant references to Plan B and Ella as abortion-causing pills. She said, “It is not only factually incorrect, it is downright misleading. These products are not abortifacients. And their only connection to abortion is that they can prevent the need for one.”

Jamie Manson (National Catholic Reporter) said that the “reality is that there is overwhelming scientific evidence that the IUD and Plan B work only as contraceptives. Since Ella is new to the market, it has not been studied as extensively. But as of now, there is no scientific proof that Ella acts as an abortifacient, either.” He added that there is only one drug approved to induce abortion—RU-486, which is not on the FDA’s list of approved contraception. He continued, “It is available only by prescription and no employer is forced to pay for it as part of an employee health plan.”

Manson said that it’s important to understand the biology of conception in order to “understand why scientists believe that the IUD, Plan B and Ella are not abortifacients.”

Manson:

…In order for a woman to become pregnant after sexual intercourse, her ovaries must release an egg (ovulation). Sperm can remain viable inside her reproductive tract for five days. Therefore, if intercourse takes place up to five days before ovulation or within two days after, both sperm and egg are viable and the egg cell can be fertilized.

Now, just because an egg is fertilized doesn’t necessarily mean that it will develop into an embryo. For that to happen, the fertilized egg must be implanted into the endometrium that lines the uterus. Implantation happens seven days after fertilization, if it happens at all. Scientists estimate that, at a minimum, two-thirds of fertilized eggs fail to implant. Some scientists estimate that the number may even be as high as 80 percent, according to Discover Magazine.

For this reason, according to the medical definition, a woman is not considered pregnant until the developing embryo successfully implants the lining of the uterus.

Regarding the cost of an IUD (New York Times):

The cost of an IUD, one of the most effective forms of birth control, is considerable. It requires a visit to the doctor, and a procedure to have the device put in place. Medical exams, insertion, and follow-up visits can run upward of $1,000. Without insurance coverage, it’s likely that many women will be unable to use them.

Writing for SCOTUSblog, Dawn Johnsen, a professor of law at Indiana University School of Law-Bloomington, said the following:

Hormonal IUDs can be forty-five times more effective than oral contraceptives and ninety times more effective than male condoms in preventing pregnancy, based on typical use.  Finally, cost concerns often drive women away from a preferred method to less effective methods.  Almost one-third of women report that they would change their choice of contraceptive method if cost were not a factor.  That’s tens of millions of women.

Religious Beliefs Trump Scientific Research in Hobby Lobby Ruling

In July, Kapur wrote about the Hobby Lobby case again following the Court’s ruling. He said that when Supreme Court Justices had suggested back in March “that certain forms of birth control were abortion-inducing, nobody stood up to point out that the claim by Hobby Lobby lacked support within the medical community.” He added that “it came as little surprise that the 5-4 ruling against the Obamacare contraception mandate ignored the scientific research about whether those contraceptives actually cause abortion. The religious owners of Hobby Lobby and Conestoga Wood believed it, and that was enough.” Justice Alito wrote for the Court, “If the owners comply with the HHS mandate, they believe they will be facilitating abortions”—“decreeing it a ‘substantial burden’ on free exercise of religion and thus in violation of the Religious Freedom Restoration Act.” He also wrote, “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

After the Hobby Lobby ruling, Erika Eichelberger and Molly Redden of Mother Jones pointed out that the five justices who ruled in favor of Hobby Lobby weren’t just overruling an Obamacare regulation, they were also overruling science.

But—as Kapur noted in his TPM article in July—“the justices weren’t legally required to consider the science. Quite the opposite: RFRA, a statute passed by a Democratic Congress and signed by President Bill Clinton in 1993, grants special treatment under the law to religious people regardless of whether their beliefs are substantiated by evidence.”

On a segment of The Daily Show back in March, John Stewart said, “So let me get this straight.Corporations aren’t just people, they’re ill-informed people. Whose factually incorrect beliefs must be upheld because they sincerely believe them anyway.”

It isn’t just the Hobby Lobby folks and some Supreme Court Justices who appear ill-informed about certain contraceptives. After the Hobby Lobby ruling, Katie McDonough (Salon) wrote that some of the right’s talking points on Hobby Lobby were wrong and showed a misunderstanding of health insurance and sex.

McDonough:

On Fox News, Bill O’Reilly and Megyn Kelly tried to see who could out-ignorant the other by shouting misinformation about how birth control works and the supposedly narrow scope of the ruling. Also on Fox News… Brit Hume concluded — with zero supporting medical evidence — that the four forms of contraception no longer covered by Hobby Lobby “amounted to abortion.”

While over at the National Review Online, editor Jonah Goldberg wrote that Hobby Lobby “objected to paying for what it considers to be abortifacients, which don’t prevent a pregnancy but terminate one. The pro-abortion-rights lobby can argue that ‘abortion’ and ‘birth control’ are synonymous terms, but that doesn’t make it true.” I’d respond to Goldberg by saying that the owners of Hobby Lobby may believe that the four contraceptives that it objected to are abortifacients—but that doesn’t make it true.

After returning from a two-week hiatus from The Daily Show on July 14^th, Jon Stewart did a segment on the Hobby Lobby ruling. He found it interesting that the owners of Hobby Lobby consider Plan B to be an abortifacient—even though the American College of Obstetricians and Gynecologists say it isn’t. “But what would they know about vaginas?” said Stewart. “Compared to a corporation that sells foam cones and glitter.”

SOURCES

Morning-After Pills Don’t Cause Abortion, Studies Say (NPR)

What an abortifacient is — and what it isn’t (National Catholic Reporter)

Science Was Irrelevant In Hobby Lobby And That’s Congress’s Fault (Talking Points Memo)

Conservative Justices Appear Ready To Strike Birth Control Mandate (Talking Points Memo)

Jonah Goldberg’s sexual tumult: The right doesn’t get how birth control works: The right’s lame talking points on Hobby Lobby are wrong — and show a misunderstanding of health insurance and sex (Salon)

5 myths about the Hobby Lobby case, debunked (MSNBC)

How Hobby Lobby Ruling Could Limit Access to Birth Control (New York Times)

In Hobby Lobby Case, the Supreme Court Chooses Religion Over Science: Five justices ignore science in their ruling that companies are not required to provide contraception under Obamacare. (Mother Jones)

What Clarence Thomas and Antonin Scalia don’t understand about contraception: An IUD is a month’s pay for a woman earning minimum wage. The legal argument against Hobby Lobby is a human one (Salon/SCOTUSblog)