Zubik v. Burwell: The Conservative "Abortifacient" Myth That Became The Latest Attempt To Block ACA Contraceptive Coverage

››› ››› SHARON KANN

On March 23, the Supreme Court will hear oral arguments in Zubik v. Burwell, a consolidated case brought by religious nonprofits challenging a process for opting out of the Affordable Care Act's (ACA) contraception mandate. These groups argue that the process of opting out of providing insurance coverage for forms of contraception that they falsely deem "abortifacients" poses a "substantial burden" to their religious beliefs, a claim right-wing media have endorsed.

Supreme Court Will Hear Arguments Over Constitutionality Of Opt-Out Process For Religious Nonprofits That Oppose Providing Contraceptive Coverage

Supreme Court Will Hear Challenge To Process That Allows Religious Nonprofits To "Opt Out" Of Providing ACA-Mandated Contraceptive Coverage. In November, the Supreme Court agreed to hear oral arguments in Zubik v. Burwell -- a case challenging the administrative opt-out process developed to accommodate religious nonprofits' objections to the Affordable Care Act's (ACA) contraceptive mandate. According to The New York Times' editorial board, the objecting groups are concerned that even opting out of providing contraception "makes them complicit in the provision of contraceptives and violates their religious freedom":

The question in the Zubik case is a simple one: Do religious objectors get to disobey the laws they dislike, even when that places burdens on others?

The case arose out of a dispute over the Affordable Care Act's requirement that employers' health plans provide free contraceptive coverage to their employees. The Obama administration exempted churches, mosques, synagogues and other houses of worship from the requirement. When nonprofit organizations with religious affiliations, like universities, hospitals and social-service groups, argued that they, too, should be exempt, the administration offered them an easy way to opt out: Notify their insurer or the government, in writing, of their refusal to provide coverage. At that point, those organizations have no further role in the process; the government takes over and ensures that employees are given free access to contraceptives.

This accommodation struck a reasonable balance between the government's respect for religious freedom and its strong interest in carrying out the law's mandate. But it was still not enough for many religious-affiliated employers, who said that the very act of notification makes them complicit in the provision of contraceptives and violates their religious freedom. [The New York Times, 3/21/16]

Petitioners All Object To Covering Forms Of Contraception They Claim Are "Abortifacients." In each of the cases consolidated into the Zubik v. Burwell challenge, the petitioners are religiously affiliated nonprofits that object to providing their employees access to contraceptive methods that they say cause abortions (so-called "abortifacients"). The petitioners repeatedly emphasize this argument in their briefs for the case, claiming that they are being "forced to facilitate access to contraceptives and abortifacients through their own [insurance] plans." According to the consolidated brief for the Little Sisters of the Poor, there are "four types of contraceptives that the petitioners consider abortifacients." [Brief for Petitioners for David Zubik, et al. 1/4/16; Brief for Petitioners for Little Sisters of the Poor, et al.1/4/16]

Right-Wing Media Pushed "Abortifacient" Myth In Discussions Of Contraception Mandate Cases

1. Little Sisters of the Poor  

Fox News Contributor Stephen Hayes: Groups Are Trying To Avoid Providing "Contraceptives And Abortifacients" To Employees. During a January 2, 2014, segment on America's Newsroom, Fox News host Bill Hemmer discussed Supreme Court Justice Sonia Sotomayor's decision to issue a temporary injunction against application of the ACA's contraceptive mandate for a nonprofit suing the government in Little Sisters of the Poor v. Burwell. While Hemmer misleadingly claimed that the ACA would "make [the nuns] provide birth control" to their employees, Hemmer's guest -- Weekly Standard senior writer and Fox News contributor Stephen Hayes -- also argued that the nonprofit was suing to prevent having to provide "abortifacients." From America's Newsroom:

BILL HEMMER (HOST): The point for this group of Catholic nuns is that if you make us provide birth control, not only does it violate our religious beliefs, but if we do not do it and adhere to the law, we will suffer fines that will cause us to go bankrupt.

STEPHEN HAYES: Right. And the administration -- remember, back in the spring -- proposed what they call the compromise, which would have allowed these nonprofit groups to sort of certify that they weren't providing, actually providing this contraceptive and abortifacient coverage, but then the insurance companies would be doing so on their behalf. And the argument that you hear from those representing this group and others is that's not good enough because in effect what we would be doing is signing off and facilitating the coverage of these kinds of contraceptives and abortifacients for our employees.

HEMMER: Steve, just back up a little bit. Why did the administration think it was necessary to include this contraception mandate in the health care bill to begin with?

HAYES: Well, I think we've heard from the president pretty consistently that he believes that the government should be in the business of covering all of women's health and that is to include birth control, other contraceptives, and these abortifacients -- and, I think if they had their way, abortions themselves. [Fox News, America's Newsroom, 1/2/14, via Media Matters]

Wash. Times: Health Care Law Requires That "Religious Groups, Whether They Want To Or Not, Must Subsidize Abortions, Sterilization And Contraceptive Devices." A January 2 Washington Times editorial decried the ACA and claimed the health care law subsidizes abortions, saying that Justice Sotomayor "had no choice but to block enforcement of the health care law's requirement that religious groups, whether they want to or not, must subsidize abortions, sterilization and contraceptive devices." [The Washington Times, 1/3/14]

2. Hobby Lobby

Rich Lowry: Hobby Lobby Owners Are "Literally" Forced To Provide Coverage For Birth Control. National Review editor Rich Lowry mistakenly characterized the "contraception mandate" as an unavoidable act of coercion for companies like Hobby Lobby that object to contraception and want to "mind their own business." According to Lowry, the ACA would force companies like Hobby Lobby to provide contraceptives that they "consider abortifacients" to their employees:

Not too long ago, the Greens of Oklahoma City were law-abiding people running an arts-and-crafts chain called Hobby Lobby.

They weren't disturbing the peace, or denying anyone his or her rights. They were minding their own business -- quite successfully and in keeping with their Christian faith. The roughly 600 Hobby Lobby stores stock Christian products, close on Sundays, and play Christian music.

Then one day Uncle Sam showed up to make an offer that the Greens couldn't refuse -- literally. As part of Obamacare, federal law demands that the chain cover contraceptives that the Greens consider abortifacients. The family decided it couldn't comply with the law in good conscience, and its case is now before the Supreme Court.

Hobby Lobby went from an inoffensive business to a scofflaw and an alleged combatant in the "war on women" in no time at all -- and without changing any significant employment or business practice. Thus is the transformation wrought by the coercive sweep of Obamacare, which risks doing as much damage to conscience rights as it has done to the insurance market.

[...]

Hobby Lobby is now bizarrely portrayed as wanting to barge into examination rooms. "Selectively denying insurance coverage for contraceptive methods an employer considers sinful," the liberal legal lion Walter Dellinger wrote in the Washington Post, "makes the employer a party to a woman's medical consultations." And here the Greens thought they were just selling glue, scrapbook paper, beads, and the like. [National Review, 3/25/14]

Fox's Heather Childers And Guest Jay Sekulow Allege That The ACA Forces Businesses To Cover "Procedures That Are Basically Abortion." On the November 27, 2013, edition of Fox News' America's Newsroom, guest host Heather Childers and guest Jay Sekulow, a lawyer representing one of the plaintiffs in Burwell v. Hobby Lobby, referred to the Plan B pill as an "abortifacient" that employers would be forced to cover under the ACA. According to Childers, a decision against Hobby Lobby would force businesses to cover "some procedures that are basically abortion" (emphasis added):

JAY SEKULOW:[W]ith the morning-after pill, which many consider to be abortifacient, in that case the idea that the government would compel the business employer to purchase that for their employees, we think goes too far and violates the First Amendment's free exercise clause.

HEATHER CHILDERS (GUEST HOST): And that's actually where the argument, there is some discrepancies between both sides. Because if you take the beginning of the statement from the White House that we just read, the first part of it said that the health care law puts women and families in control of their health care by covering vital preventative care, like cancer screenings and birth control free of charge. But that's where you know some organizations, some groups, these specifically, Hobby Lobby being one of them and some of yours, they would argue that this does not just include preventative care and birth control, they would argue that this would also include some procedures that are basically abortion.

SEKULOW: Yeah, well, and -- because that does. I mean the health care law mandates these despite the president's protests to the contrary. The regulatory scheme that was implemented by HHS actually does include those very things you just mentioned. And if you take a look at Hobby Lobby's situation, where they've got thousands of employees throughout the United States, a very successful company, the idea that the government is telling the owners of Hobby Lobby, "Look you surrender your right to a free exercise of religion, your faith, when you enter into the commerce stream as a business. And you must acquire for your employees something that violates what you believe in." That's ridiculous. The Supreme Court has said that the right of freedom of speech does apply to corporations; the question here will be, does the free exercise of religion apply to corporations? [Fox News, America's Newsroom, 11/27/13]

But Medical Experts Agree That Covered Contraceptives Aren't "Abortifacients"

Medical Experts Agree That Emergency Contraception Procedures "Do Not Interrupt Established Pregnancy" And Are Not "Abortifacient." In a March 2016 white paper, a group of medical experts and social scientists explained the stark differences between emergency contraception and abortion procedures or so-called "abortifacients." They wrote that emergency contraception pills "do not interrupt an established pregnancy" and therefore are not "abortifacient," in part because medical consensus defines "implantation" as the beginning of a pregnancy. They further refuted the "abortifacient" myth by explaining that emergency contraception pills all function like "regular hormonal contraceptives" because they "prevent pregnancy primarily by delaying or inhibiting ovulation and inhibiting fertilization"(citations removed):

ECPs do not interrupt an established pregnancy, defined by medical authorities such as the United States Food and Drug Administration/National Institutes of Health and the American College of Obstetricians and Gynecologists as beginning with implantation. Therefore, ECPs are not abortifacient.

To make an informed choice, women must know that ECPs -- like all regular hormonal contraceptives such as the birth control pill, the implant Implanon, the vaginal ring NuvaRing, the Evra patch, and the injectable Depo-Provera, and even breastfeeding -- prevent pregnancy primarily by delaying or inhibiting ovulation and inhibiting fertilization, but it is not scientifically possible to definitively rule out that a method may inhibit implantation of a fertilized egg in the endometrium. At the same time, however, all women should be informed that the best available evidence is that the ability of levonorgestrel and ulipristal acetate ECPs to prevent pregnancy can be fully accounted for by mechanisms that do not involve interference with post-fertilization events. [Princeton University, Office Of Population Research, March 2016]

MSNBC: Function Of Contraceptives Doesn't Fit "The Medical Definition Of Abortion" And There Is "Very Little Evidence" They Are "Abortifacients." Following the Supreme Court's decision in Sebelius v. Hobby Lobby, MSNBC's Irin Carmon published an article debunking some of the common misconceptions about the case -- chief among them, the belief that the covered contraceptives constituted "abortifacients." According to Carmon, the belief that contraceptives are "abortifacients" because they are "preventing the implantation of a fertilized egg" is incorrect because it does not meet the "medical definition of abortion, which is ending a pregnancy." She concludes that even if one did believe that preventing implantation constitutes abortion, "there is very little evidence showing that the objected-to methods" function that way because they instead attempt to "prevent ovulation" entirely. From MSNBC:

The baseline question here is whether potentially and intentionally preventing the implantation of a fertilized egg constitutes abortion. That's not the medical definition of abortion, which is ending a pregnancy. But let's say your sincerely held belief is that interfering with the implantation of a fertilized egg is tantamount to abortion, as it is for the Hobby Lobby and Conestoga Wood owners. There is very little evidence showing that the objected-to methods - two forms of intrauterine devices and two forms of emergency contraception - even work that way, with the exception of the copper IUD.

There are two kinds of emergency contraception on the market: an over-the-counter one generally known as Plan B and a prescription-only one known as Ella. According to the amicus brief filed by the American College of Obstetricians and Gynecologists and several other medical associations, "there is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA affect an existing pregnancy." Instead, they prevent ovulation, so there is no egg to fertilize. That includes the longer-acting Ella: "There is no evidence that [Ella] affects implantation." [MSNBC, 7/1/14]

Guttmacher Institute: "Abortifacient" Myth Ignores And "Contradicts What Science Says" About Pregnancy And Contraception. According to research from the Guttmacher Institute, the "campaign to conflate contraception with abortion" is baseless and rests on the incorrect "assertion that certain methods of contraception actually end -- rather than prevent -- pregnancy." Instead, the institute explained, "a contraceptive method, by definition, prevents pregnancy by interfering with ovulation, fertilization, or implantation" while an abortion ends a pregnancy following implantation. In particular, the institute noted that to claim otherwise "contradicts what science says about how pregnancies are established and how contraceptives work." From the Guttmacher Institute (emphasis added):

The campaign to conflate contraception with abortion is based on the assertion that certain methods of contraception actually end--rather than prevent--pregnancy. That assertion, however, contradicts what science says about how pregnancies are established and how contraceptives work. These facts are laid out in detail in an amicus brief submitted to the Supreme Court in October 2013 by numerous medical associations, led by Physicians for Reproductive Health and the American College of Obstetricians and Gynecologists. A contraceptive method, by definition, prevents pregnancy by interfering with ovulation, fertilization or implantation. Abortion ends an established pregnancy, after implantation. This scientific definition of pregnancy--which reflects the fact that most fertilized eggs naturally fail to implant in the uterus--is also the legal definition, and has long been accepted by federal agencies (during administrations both supportive of and opposed to abortion rights), and by U.S. and international medical associations. [Guttmacher Institute, Fall 2014]

And The ACA Doesn't Cover Abortion

Kaiser: Abortion Is "Explicitly Excluded" From Essential Health Benefits (EHB) That ACA Plans Are Required To Provide. According to research from the Kaiser Family Foundation, the Affordable Care Act says "no plan is required to cover abortion" while "all plans offered on the ACA Marketplaces must provide coverage for 10 Essential Health Benefits (EHB)." Abortion is "explicitly excluded" from the list of mandated services. From the Kaiser Family Foundation (emphasis added):

All plans offered on the ACA Marketplaces must provide coverage for 10 Essential Health Benefits (EHB). Abortion services, however, are explicitly excluded from the list of EHBs that all plans are required to offer. Under federal law, no plan is required to cover abortion. Federal regulations stipulate that at least one Multi-State Plan that excludes abortion coverage must be available in each Marketplace. However, there is a transitional period to implement this policy (ending in 2017). In 2016, 32 States and DC have a Multi-State Plan. States can also enact laws that bar all plans participating in the state Marketplace from covering abortions, which 25 states have done since the ACA was signed into law in 2010. Most state laws include narrow exceptions for women whose pregnancies endanger their life or are the result of rape or incest, but two states (Louisiana and Tennessee) do not provide for any exceptions. The ACA prohibits plans in the state Marketplaces from discriminating against any provider because of "unwillingness" to provide abortions. [Kaiser Family Foundation, 1/20/16]

Guttmacher Institute: ACA Does Not Cover -- Or Allow Federal Funds To Be Used For -- Elective Abortion Procedures. In a Winter 2015 report, the Guttmacher Institute found that although guidelines for various insurance plans were confusing to users, there was zero federally funded abortion coverage provided by the ACA. The institute explained that even in the design of the ACA, "Congress decided against guaranteeing coverage" for abortion. Furthermore, if a plan issuer would like to provide abortion services, it must "follow particular administrative requirements to ensure that no federal funds go toward abortion." From the Guttmacher Institute (emphasis added):

Abortion is basic health care and therefore should be covered by health insurance. However, in passing the Affordable Care Act (ACA), Congress decided against guaranteeing coverage of this basic health service, and established rules unique to abortion coverage. Under the ACA, an issuer opting to cover abortion care in marketplace plans must follow particular administrative requirements to ensure that no federal funds go toward abortion. Moreover, states retain the option to ban abortion coverage in marketplace plans outright, and half of states have already done so. Given the special treatment of abortion care under the ACA and the confusion it has created, individuals covered by or shopping for a plan should be at least able to easily discern whether and to what extent a plan covers such care. [Guttmacher Institute, Winter 2015]

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