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Sunday, May 27, 2018

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). 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.