By Greg Lipper

At his confirmation hearing on Thursday, Judge Kavanaugh used the phrase “abortion-inducing drugs" to describe the contraceptives to which Priests for Life objected, in a case heard by the D.C. Circuit, to covering in their employee health plan. While his use of "abortion" to describe contraception may suggest his views on bedrock right-to-privacy cases like Griswold v. Connecticut, it’s also at odds with virtually all modern science.

As the Supreme Court prepared to hear Zubik v. Burwell in March 2016, I wrote about the plaintiffs' claims that two types of IUDs and two forms of emergency contraception act as abortifacients. My analysis is cross posted here from the Petrie-Flom Center’s Bill of Health blog and sheds light on Kavanaugh's statements at his confirmation hearing. 

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Pay attention to the Supreme Court’s upcoming contraceptive-coverage cases and you’ll hear horror stories from religious-right groups about an “abortion-pill mandate” (here’s ADF and ACLJ). These groups know that contraception is popular and that, to most people, campaigns to block birth control would seem Jurassic. With abortion more controversial, claims about compulsory distribution of “abortion pills” sound much scarier. Indeed, the plaintiffs’ briefs in Zubik claim that the accommodation would make the plaintiffs complicit in the provision of coverage for, among other things, “abortifacients.”

But neither surgical abortion nor the abortion pill (known as RU–486) are part of the Affordable Care Act’s coverage requirements. So why are courts, websites, and inboxes awash in complaints about the termination of pregnancies?

The answer combines certain religious beliefs about when pregnancy begins with willful misunderstanding of how certain contraceptives actually work. For one, according to the scientific definition of pregnancy, also adopted by the federal government, pregnancy doesn’t begin until a fertilized egg has already implanted in the uterus. But some people believe, as a matter of religion, that life begins at the time of fertilization—even though only one in five fertilized eggs successfully implant in the uterus—such that any drug or device that prevents a fertilized egg from implanting in the uterus performs an abortion. More importantly, the plaintiffs challenging the contraception accommodation claim that four methods of contraception at issue in these cases—two forms of emergency contraception, and two types of IUDs—act to prevent a fertilized egg from implanting in the uterus.

For the non-Catholic plaintiffs, these claims are the difference between filing suit and staying home. Most evangelical Protestants do not oppose the use of birth control. They do, however, oppose abortion; so by classifying certain contraceptives as abortifacients, they have manufactured a reason to challenge the contraception regulations.

Courts, however, have not addressed the science underlying the plaintiffs’ claims, and that is unfortunate. For although a court should defer to the religious belief—that life begins when sperm fertilizes an egg—a court should not defer to a scientific misunderstanding—about whether certain contraceptives in fact prevent fertilized eggs from implanting in the uterus. Courts don’t debate whether Jews are allowed to eat pork, but they would reject the claim that broccoli comes from a pig.

Needless to say, the science underlying the plaintiffs’ arguments that the government requires coverage for “abortifacients” deserves a look. And whether you think that life begins at fertilization or implantation, the scientific mechanisms of emergency contraceptives and IUDs are not in serious dispute. Three of the four claimed abortifacients prevent only fertilization and are incapable of stopping the implantation of a fertilized egg. A fourth can, in theory, prevent implantation, but it’s rarely if ever used that way; as actually used, it prevents fertilization, not implantation. In sum, none of the purported abortifacients actually cause abortion—even under the broader definition adopted by the plaintiffs.

IUDs

In some ways, IUDs are the linchpin of the coverage regulations. They are 20 times more effective than birth-control pills, but they are considerably more expensive. This makes insurance coverage for IUDs essential: A landmark study showed that when women received access to free contraceptives of their choice, 3 in 4 chose the IUD, and that the result was dramatic reductions in the rate of both unintended pregnancy and abortion. So if courts allow the plaintiffs to block women from receiving IUD coverage, the harm to women will be especially significant.

Zubik and its companion cases involve two types of IUDs: ParaGard (also known as the copper IUD) and Mirena. Studies have shown that IUDs prevent the implantation of fertilized eggs in rats, but not in humans (or, for that matter, in sheep). That’s because IUDs work not by preventing fertilized eggs from implanting, but by obliterating sperm: “When you put an IUD in your uterus, your immune system registers it as an intruder and starts to attack. White blood cells can’t kill a piece of plastic and copper, but they gave it their best shot, and those efforts end up killing the majority of sperm that reaches the uterus.” (The copper IUD is especially good at this, because copper ions are toxic to sperm.) Through a similar mechanism, IUDs also seem to destroy unfertilized eggs.

Although it’s extraordinarily reliable at preventing fertilization, the Mirena IUD doesn’t work if inserted after fertilization has already occurred—it simply won’t prevent implantation of a fertilized egg. And while the copper IUD can, if inserted up to five days after sex, be toxic to a fertilized egg, it’s rarely if ever used this way. As actually used, then, the IUD serves “to prevent fertilization, not to prevent implantation.”

Emergency Contraception (Plan B and Ella)

The contraceptive-coverage cases involve not only IUDs, but also emergency contraceptives: Plan B (known as the morning-after pill), and Ella (known as the week-after pill). Women use emergency contraceptives (usually Plan B) about 12 million times each year.

Curiously, FDA labeling states that both Plan B and Ella may block fertilized eggs from implanting in the uterus. But nobody can identify a legitimate scientific basis for those statements. More to the point, scientific studies undermine them.

With respect to Plan B, a series of studies over the past 15 years has made increasingly clear that Plan B prevents fertilization and can’t prevent implantation. One key study confirmed that the drug prevented pregnancy in all women who took it before ovulation began, but that women who took Plan B after ovulating became pregnant at the same rate as those who did not take the drug at all. If Plan B actually prevented implantation, however, the results would have been different. In light of this data, in 2012 the International Federation of Gynecology and Obstetrics concluded that Plan B’s active ingredient does “not inhibit implantation.”

Although Ella has been studied less than Plan B, studies show that Ella likewise fails to prevent pregnancy in women who have already ovulated. This data strongly suggests that, like Plan B, Ella prevents fertilization but not implantation.

These studies notwithstanding, Ella can be confusing because of its longevity: Ella works for up to five days after sex. But the drug’s more leisurely pace does not mean that it acts after fertilization, which takes longer than most people realize: “Although many people think sperm and egg unite immediately after sex, sperm need time to position themselves.”

There is, to be sure, an actual abortion pill, called RU–486; that drug, for which the Affordable Care Act does not require coverage, terminates embryos that have already implanted. And although Ella and RU–486 have similar active ignredients, there is 20 times less of that ingredient in Ella than in RU–486, which works up to seven weeks after women become pregnant. RU–486 works differently than Ella: RU–486 affects uterine lining, Ella affects the ovaries. And these differences explain why, unlike RU–486, Ella works to prevent fertilization, not to block implantation.

In sum, as with IUDs, emergency contraceptives’ “only connection to abortion is that they can prevent the need for one.”

The Broader Effects on Public Health

To review: Three of the four so-called abortifacients cannot prevent the implantation of a fertilized egg; the fourth can do so in theory but rarely if ever does so in practice. And yet the plaintiffs complain that they are required to cover “abortifacients,” and “the abortion pill mandate” is the refrain of the regulations’ most vocal opponents.

This continued spread of bad science affects not only the courts of law and public opinion, but also public health more generally. For example, last year the Colorado legislature killed an award-winning program that distributed IUDs to teenagers and reduced teen births by 40 percent over five years; several of the program’s opponents claimed that IUDs are abortifacients and that, as a result, the government shouldn’t pay for them. Private donors have since stepped in to fund the program for a year, but its long-term outlook is uncertain. Meanwhile, in Tempe, Arizona the school-board Vice President scuttled a debate over the sex-ed curriculum by asking whether the IUD “should be called an abortion method instead of a birth-control device”; the board ended up delaying approval of the curriculum and returning it to school-district staff for revision.

As advocates and courts repeat the canard that effective methods of birth control are abortifacients, we’ll likely see more and more of these attempts to interfere with access to emergency contraception and the IUD. Women will quite literally pay the price.

Greg Lipper (@theglipper) is a partner at Clinton Brook & Peed in Washington, DC and the former Senior Litigation Counsel at Americans United for Separation of Church and State. 

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