Hobby Lobby Claims Some Contraception Causes Abortion, Requirement To Cover It Violates Its Rights

Supreme Court To Hear Oral Arguments In Sebelius V. Hobby Lobby On March 25. On March 25, the Supreme Court will hear oral arguments in Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporations an unprecedented religious exemption from the Affordable Care Act's (ACA) “contraception mandate,” which requires all insurance plans to cover preventive health services without co-pays, including birth control. From CNN:

The [Supreme Court] justices will hear oral arguments Tuesday in a dispute involving contraception coverage and religious liberty.

The court will review provisions in the Affordable Care Act requiring for-profit employers of a certain size to offer insurance benefits for birth control and other reproductive health services without a co-pay. At issue is whether certain companies can refuse to do so on the sincere claim it would violate their owners' long-established personal beliefs.

[...]

The constitutional debate now shifts to the separate employer mandates and whether corporations themselves enjoy the same First Amendment rights as individuals.

Three federal appeals courts around the country have struck down the contraception coverage rule, while two other appeals courts have upheld it. That “circuit split” made the upcoming Supreme Court review almost certain. [CNN.com, 3/23/14]

Hobby Lobby Opposed To Covering Forms Of Contraception They Believe Are Abortifacients. According to Mother Jones, the family that owns Hobby Lobby argues that the contraception mandate will force them to violate their religious beliefs by requiring them to offer forms of contraception they equate with abortion:

Hobby Lobby is a privately held, for-profit corporation with 13,000 employees. It's owned by a trust managed by the Green family, devout Christians who run the company based on biblical principles. They close their stores on Sundays, start staff meetings with Bible readings, pay above minimum wage, and use a Christian-based mediation practice to resolve employee disputes. The Greens are even attempting to build a Museum of the Bible in Washington, DC.

The Greens contend that the ACA's requirement that health insurance plans cover contraception will force them to choose between violating their religious beliefs or suffer huge financial penalties for violating the law. They don't object to covering all contraception, only the emergency contraceptive pills Plan B and Ella and intrauterine devices (IUDs), which they (erroneously) believe are abortifacients. But the Greens aren't the ones who'd be providing the health insurance with contraceptive coverage. Their corporation, Hobby Lobby, would be. [Mother Jones, 3/21/14]

Experts Agree That The Morning-After Pill Is Not An Abortifacient

The ACA Does Not Cover Abortions Or Abortifacients

Hobby Lobby Is Seeking To Control Employees' Earned Benefits

High Costs Of Contraceptives Are A Primary Barrier To Access

Access To Contraceptives Is Uneven And Unequal In the U.S.

Contraception Coverage Has Significant Economic Benefits

Experts Agree That The Morning-After Pill Is Not An Abortifacient

Medical Experts Agree: The Morning-After Pill Does Not Prevent Implantation. The National Institutes of Health, the Mayo Clinic, and the International Federation of Gynecology and Obstetrics all agree that the morning-after pill does not prevent implantation, the medical beginning of pregnancy. From The Daily Beast:

In federal law and medical terms, pregnancy does not begin with a fertilized egg, but with a fertilized egg that has implanted in the uterus. The contraceptives in question--Plan B, Ella, copper and hormonal IUDs--do not cause abortions as the plaintiffs maintain, because they are not being used to terminate established pregnancies.

[...]

Since the FDA approved Plan B in 1999, repeated studies have shown the drug does not inhibit implantation. After The New York Times' Pam Belluck investigated these findings in 2012, the NIH and the Mayo Clinic updated their websites to remove the implantation clause. In Europe, the label for the drug Norlevo, which is identical to Plan B, has already been changed to reflect the most recent research. And the International Federation of Gynecology and Obstetrics and the International Consortium for Emergency Contraception have issued statements saying levonorgestrel-only emergency contraceptives do not stop implantation. [The Daily Beast, 3/22/14]

NPR: Contraceptives Are Not “The Same As The Abortion Drug.” As NPR reported, studies have shown that contraceptives such as the “morning-after pill” do not terminate pregnancy like RU-486, which “isn't considered a contraceptive and isn't covered by the new insurance requirements”:

The most heated part of the fight between the Obama administration and religious groups over new rules that require most health plans to cover contraception actually has nothing to do with birth control. It has to do with abortion.

Specifically, do emergency contraceptives interfere with a fertilized egg and cause what some consider to be abortion?

“The Health and Human Services preventive services mandate forces businesses to provide the morning-after and the week-after pills in our health insurance plans,” said David Green, founder and CEO of the arts and crafts chain Hobby Lobby, one of the firms suing over the requirements. “These abortion-causing drugs go against our faiths.”

The morning-after pill he's referring to is sold under the brand name Plan B. The week-after pill, which actually only works for five days after unprotected sex, is called ella.

Both are classified by the Food and Drug Administration as contraceptives. Neither is the same as the abortion drug RU-486, or Mifeprex. That pill isn't considered a contraceptive and isn't covered by the new insurance requirements.

The constant references to Plan B and ella as abortion-causing pills frustrates Susan Wood, a professor of health policy at George Washington University and a former assistant commissioner for women's health at the FDA.

“It is not only factually incorrect, it is downright misleading. These products are not abortifacients,” she says. “And their only connection to abortion is that they can prevent the need for one.” [NPR, 2/21/13]

NY Times: Emergency Contraceptives Work To Prevent Ovulation, Not Implantation. The New York Times explained that emergency contraception works to preempt pregnancy. By delaying ovulation, Plan B stops an egg from being released for fertilization. Some emergency contraceptives may also work to thicken cervical mucus to make it more difficult for sperm to swim. Plan B does not stop implantation after fertilization has occurred. From the Times:

Studies have not established that emergency contraceptive pills prevent fertilized eggs from implanting in the womb, leading scientists say. Rather, the pills delay ovulation, the release of eggs from ovaries that occurs before eggs are fertilized, and some pills also thicken cervical mucus so sperm have trouble swimming.

It turns out that the politically charged debate over morning-after pills and abortion, a divisive issue in this election year, is probably rooted in outdated or incorrect scientific guesses about how the pills work. Because they block creation of fertilized eggs, they would not meet abortion opponents' definition of abortion-inducing drugs.

[...]

By 2007, scientific consensus was building that morning-after pills did not block implantation. In one study using fertilized eggs that would have been discarded from fertility clinics, Dr. Gemzell-Danielsson found that adding Plan B in a dish did not prevent them from attaching to cells that line the uterus. [The New York Times, 6/5/12]

The ACA Does Not Cover Abortions Or Abortifacients

Kaiser: Abortion Coverage Is Specifically Banned From Being Required As Part Of The Essential Benefits Package Offered By Plans In Exchange. The Kaiser Family Foundation noted that while the mandate requires coverage for FDA-approved contraceptives, abortion coverage is specifically banned from the requirement:

Most workers in employer-sponsored plans are currently covered for contraceptives. Family planning counseling and FDA approved contraceptives were added as a preventive service for women that must be covered by new private plans as of August 2012. However, in response to objections from some religious employers that oppose the use of contraception, HHS issued an exemption from the contraceptive coverage requirement of the law for house of worship.

[...]

[A]bortion coverage is specifically banned from being required as part of the essential benefits package offered by plans in exchange and all of the exchanges must offer consumers the choice of at least one plan that does not provide abortion coverage. States may also enact legislation to ban any plan from offering abortion coverage, either in the exchange or more broadly in the private market and many states either have laws or are pressing forward with new laws to do that. [Kaiser Family Foundation Issue Brief, August 2013]

Mandate Requires Coverage For FDA-Approved Contraceptives, And The Only Drug Approved To Induce Abortion Is Not Included. As a column in the National Catholic Reporter pointed out, “there is no scientific evidence that any FDA-approved contraception is capable of destroying an embryo.” It went on, debunking the claim that the contraceptives included in the mandate work to induce abortions:

The HHS mandate allows women free access to all FDA-approved forms of contraception. This includes the IUDs (intrauterine devices), the drug Plan B (levonorgestrel) and a new drug called Ella (ulipristal acetate), which came on the market in 2010. Church officials and others have argued that because these three contraceptives are abortifacients, the government is forcing them to participate in the distribution of devices and drugs that cause abortion.

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.

There is only one drug approved to induce abortion. It is called RU-486 (mifepristone) and is not on the FDA's list of approved contraception. It is available only by prescription and no employer is forced to pay for it as part of an employee health plan.

[...]

[T]here is no scientific evidence that any FDA-approved contraception is capable of destroying an embryo. To say that any of these drugs are abortifacient is not only misleading, it does a profound disservice to women who find themselves in a situation where they might have to use one of these drugs or devices. [National Catholic Reporter, 2/20/12]

Hobby Lobby Is Seeking To Control Employees' Earned Benefits

Senior Policy Associate At Guttmacher: Hobby Lobby Seeks To Control Benefits Employees Have Earned. Adam Sonfield, a senior public policy associate at the Guttmacher Institute, explained to Think Progress:

“It's an incredible devaluing of the insurance that you as an employee work for,” Sonfield, who recently published a policy review of the central arguments in the upcoming Supreme Court challenges, pointed out. “This is telling you that you can't use your compensation -- your own benefits that you have earned -- in a way that your boss objects to. And that is a frightening road for us to be going down, as a society.” [Think Progress, 3/19/14]

Pew: Hobby Lobby Does Not “Directly Provide Contraception Services To Their Workers.” In a report on the Hobby Lobby case, Pew Research pointed out that, like the government plans to argue before the Court, Hobby Lobby does not provide contraception services to their employees:

Hobby Lobby and Conestoga do not directly provide contraception services to their workers. Instead, they offer their employees health insurance that covers a huge array of medical services, including birth control. In addition, any decision to use birth control rests with the employees, not the insurance providers or the companies. [Pew Research, 3/20/14]

High Costs Of Contraceptives Are A Primary Barrier To Access For Many Women

CAP: High Costs Of Contraceptives Have Forced More Than Half Of Young Adult Women To Stop, Delay, Or Not Use Their Preferred Method As Directed. A 2012 Center for American Progress study explained that high costs “are one of the primary barriers to contraceptive access,” and that “more than half of young adult women say they have not used their method as directed because it was cost-prohibitive”:

High costs have forced many women to stop or delay using their preferred method, while others have chosen to depend on less effective methods that are the most affordable.

• Surveys show that nearly one in four women with household incomes of less than $75,000 have put off a doctor's visit for birth control to save money in the past year.
• Twenty-nine percent of women report that they have tried to save money by using their method inconsistently.
• More than half of young adult women say they have not used their method as directed because it was cost-prohibitive. [Center For American Progress, 2/15/12]

NIRH: High Cost Is “Substantial Barrier” To Accessing Contraception. The National Institute for Reproductive Health (NIRH) reported that “many women face substantial barriers to accessing contraception,” citing the “high cost” of contraception as a main barrier to access. The NIRH noted that "[l]ow-income women disproportionately face barriers to accessing contraception:

More than one in five public health care providers report that most of their clients seeking contraception have difficulty paying for their visit. Even with health insurance coverage, many women may find that they are unable to afford the high co-pays. In addition, over-the-counter contraceptive methods, such as emergency contraception and condoms, are not always covered by health insurance programs, and if they are, they often require a prescription. [National Institute for Reproductive Health, accessed 3/24/14]

Guttmacher Institute Amicus Brief Author: More Effective Contraceptives Can Cost “The Equivalent Of Month's Salary For A Full-Time Minimum-Wage Worker.” Walter Dellinger, co-author of an amicus brief filed in the Hobby Lobby case on behalf of the Guttmacher Institute, explained in a Washington Post opinion piece how the argument that many women already use contraception ignores how some of the more effective forms of contraception are often far more expensive:

The cases being heard on Tuesday also implicate equality of access to effective methods of family planning. At issue are challenges to the Affordable Care Act's requirement that health insurance policies cover without cost to the patient all methods of birth control for women approved by the Food and Drug Administration. An exemption is being sought by directors of for-profit corporations who hold a religious belief that they would be complicit in sin if the health insurance policies provided to their employees included coverage of birth control methods the bosses consider immoral.

Some of the arguments exhibit the same conflation of methods of contraception that afflicted the Griswold argument a half-century ago. The cabinet manufacturer Conestoga Wood has argued, for example, that because “89% of women who are at risk of unintended pregnancy are already using contraception,” denying insurance coverage would be no significant imposition on employees.

This argument fails to account for the fact that some methods of contraception are far more costly and far more effective than others. The hormonal intrauterine device (IUD), for instance, is 45 times more effective than oral contraceptives and 90 times more effective than male condoms in preventing pregnancy based on typical use. Initial use of implants or IUDs can cost the equivalent of month's salary for a full-time minimum-wage worker. It is not surprising that one-third of women questioned in a national survey in 2004 said they would change their method of contraception if cost were not a factor. [The Washington Post, 3/23/14, emphasis added]

NWLC: High Costs Of Emergency Contraception Makes It “Unaffordable, Or Scarcely Affordable For Many Women.” The National Women's Law Center (NWLC) reported that cost is a significant barrier to contraception access, noting that the cost of emergency contraceptives “can be up to $70 in some pharmacies”:

• EC [emergency contraception] is a relatively expensive medication - the cost of EC can be up to $70 in some pharmacies. The high cost makes EC unaffordable, or scarcely affordable, for many women.

• Thanks to the new health care law, all new insurance plans are required to provide insurance coverage of all FDA-approved contraceptive methods, including EC, without cost-sharing. However, plans do not have to cover those brands of EC that are available without a prescription, unless a woman gets a prescription for it.

• Women enrolled in Medicaid are particularly burdened by problems of cost and coverage. Some state Medicaid programs do not cover EC at all. Even states whose Medicaid programs cover EC may require women 17 and older to get a prescription first, solely for reimbursement purposes. [National Women's Law Center, 4/3/13]

Access To Contraceptives Is Uneven And Unequal In The U.S.

Guttmacher Institute: “Access To Birth Control Remains Uneven And Unequal” For Low-Income Women. As Salon detailed, a 2013 Guttmacher report on contraception found that “access to birth control remains uneven and unequal in the United States, which means that women who are economically disadvantaged or otherwise marginalized don't share in these benefits.” [Salon, 3/21/13]

Guttmacher Institute: “Disparities In Reproductive Health Access” Hurt “Economically Disadvantaged Women.” The Guttmacher Institute review showed that effective access to contraception “is a catalyst for opportunity,” while lack of access has greatly contributed to the disproportionate level of unplanned and teen pregnancies for “those with incomes below the federal poverty level.” The review found that the unplanned pregnancy rate in this population is “five times that of higher income women”:

[E]ven five decades after the advent of the pill, access to and consistent use of the most effective contraceptive methods are not enjoyed equally by all U.S. women. Disparities in contraceptive use are a major reason why half of U.S. pregnancies--3.2 million each year--are unplanned.⁴ Included in that count are the vast majority of the roughly 750,000 teen pregnancies annually. These unplanned and teen pregnancies occur disproportionately to poor women (those with incomes below the federal poverty level), whose unplanned pregnancy rate is five times that of higher income women (above 200% of poverty; see chart). Disparities in reproductive health access and outcomes have contributed to the continuing challenges faced by economically disadvantaged women in American society. Compared with their higher income counterparts, they have fewer opportunities for educational and economic achievement, for a stable marriage and for helping their children succeed.

[Guttmacher Institute Review, 2013]

Guttmacher Institute: Three In Ten U.S. Women In Need Of Contraceptives Are Currently Uninsured. The Guttmacher Institute reported that 30 percent of all U.S. women “in need of contraceptive services are currently uninsured, and that proportion is particularly high among poor women”:

[Guttmacher Institute, March 2014]

Contraception Coverage Has Significant Economic Benefits

Guttmacher Institute: Every $1 Spent On Public Funding For Family Planning Saves Taxpayers $5.68 In Medicaid Expenditures. Providing women the contraceptive services they want and need saves taxpayer money that would otherwise go to Medicaid-funded births. According to the Guttmacher Institute, “nationally, every $1.00 invested in helping women avoid pregnancies they did not want to have saved $5.68 in Medicaid expenditures that otherwise would have been needed.” [Guttmacher Institute, March 2014]

National Bureau Of Economic Research: Affordable Access To Contraceptives Has Long-Term Economic Benefits. In a 2013 working paper, the NBER demonstrated that providing affordable access to contraceptives and family planning services has long-term economic benefits such as higher family incomes and greater college completion rates, labor force participation, and wages. [National Bureau Of Economic Research, October 2013]

Guttmacher Institute: Access To Contraception Increases Women's Access To Education, Their Ability To Participate In The Workforce, And Their Earning Power. The Guttmacher Institute reported in 2013 that access to contraception has contributed significantly “to increasing women's earning power and to decreasing the gender gap in pay.” The same report showed that “effective contraceptive use can increase the amount of time women are part of the paid workforce,” as well as increasing the number of young women pursuing advanced professional degrees. [Guttmacher Institute, March 2013]