Sotomayor Temporarily Blocks ACA Birth Control Mandate For Religiously Affiliated Little Sisters Of The Poor

Supreme Court Justice Sotomayor Issues Temporary Injunction Of ACA's Contraception Mandate For Catholic Group. On December 31, Supreme Court Justice Sonia Sotomayor temporarily blocked the Obama administration from enforcing the requirement that preventative essential benefits under the ACA include birth control. Sotomayor only issued this temporary injunction on behalf of the Colorado-based Little Sisters of the Poor, a non-profit organization run by Catholic nuns, which refused to fill out the paperwork that would have exempted it from the contraception mandate. The New York Times explains:

The Obama administration urged the Supreme Court on Friday to reject a lawsuit filed by the Little Sisters of the Poor, an order of Roman Catholic nuns challenging requirements for many employers to provide health insurance coverage of birth control or face penalties under the new health care law.

The Justice Department said the requirements did not impose a “substantial burden” on the nuns' right to practice their religion, because they could “opt out” of the obligation by certifying that they had religious objections to such coverage.

The Little Sisters “need only self-certify that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services,” the administration said in a brief filed with the Supreme Court by the solicitor general, Donald B. Verrilli Jr.

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On Tuesday night, just hours before the contraceptive coverage requirements were to take effect, Justice Sonia Sotomayor of the Supreme Court temporarily blocked the Obama administration from enforcing them with respect to the nuns and certain other religious groups. [The New York Times, 1/3/14]

Right-Wing Media Use Injunction To Falsely Claim Abortifacients Are Covered By Contraception Mandate

Rush Limbaugh: “Every Obamacare Policy Must Include Contraceptives, Abortion Pills, Abortifacients.” On the January 3 edition of his radio show, Rush Limbaugh falsely included abortifacients in his list referencing the women's health services covered under the ACA's Contraception Mandate:

LIMBAUGH: You were never going to be able to keep your doctor, you were never going to be able to keep your plan, never. It was a 3-year lie. So when the lie was exposed, and the public opinion on Obama and Obamacare began to plummet, the president went out there and said, “You know what? OK. I'm going to do a deal for you. If you want your old plan, I'm going to allow the insurance companies to offer it to you for another year.” And the insurance companies said, “We can't, we'll be in violation of the law. The plans that we were offering aren't legal anymore.” And one of the reasons -- and there were many -- one of the reasons is that practically every Obamacare policy must include contraceptives, birth control pills, and abortifacients, and whatever else. Whether you want them or not, whether you need them or not, you've got to pay for other people. When your previous plan didn't have that. The regime requires that practically every new plan contain that ingredient, and therefore you couldn't keep your old plan. [Premiere Radio Networks, The Rush Limbaugh Show, 1/3/14]

Fox's Hayes Repeatedly Asserts Contraception Mandate Covers Abortifacients. On the January 2 edition of Fox News' America's Newsroom, Weekly Standard columnist and Fox News contributor Stephen Hayes used Sotomayor's injunction to mislead about what's covered by the law, claiming that the Obama administration's compromise ensuring that insurers would pay for contraceptives for employees on behalf of religious groups still forced employers to “sign off on providing abortifacients”:

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.

HAYES: Right. And the administration -- remember, back in the spring -- proposed what they called a compromise, which would have allowed these non-profit 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]

Laura Ingraham: Some People Don't Find Giving “Contraception” And “Abortifacients” To Employees “In Their Moral Orbit.” Discussing the case on the January 2 edition of her radio show, Fox News contributor Laura Ingraham referred to the women's health services included in the contraception mandate as abortifacients:

INGRAHAM: Remember the big fight over the contraception mandate? Remember it was Sandra Fluke and it was the Sebelius shining glory that all women were going to get reproductive health care under Obamacare? This was in the rule-writing process, this was in the regulatory process, this was going to be the thing that just drove all these women to the polls for the Democrats, from now until forever. Because they really cared about women. Well, turns out there are all these people out there who just really don't find it within their moral orbit to support giving contraception, and ultimately abortifacient medications as well, to people in their employ. [Courtside Entertainment Group, The Laura Ingraham Show, 1/2/14]

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]

Breitbart's Nolte: “ObamaCare Contraception Mandate” Forces Employers With Religious Affiliations To Provide Insurance Coverage For “Abortion-Inducing Drugs.” In a January 1 post, Breitbart.com columnist John Nolte erroneously claimed that the ACA “forces employers, including those with religious affiliations, to provide health insurance, including coverage for contraception and abortion-inducing drugs.” [Breitbart, 1/1/14]

ACA's Contraception Mandate 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.

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[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 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. [National Catholic Reporter, 2/20/12]

Contraceptives Are Not “The Same As The Abortion Drug RU-486.” As NPR reports, studies have shown that the contraceptives at issue, 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:

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.

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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]

International Federation Of Gynecology Obstetrics: Emergency Contraceptives “Do Not Inhibit Implantation.” A 2012 statement by the International Federation of Gynecology Obstetrics on a form of emergency contraception explained:

Two studies have estimated effectiveness of [emergency contraceptive pills] by confirming the cycle day by hormonal analysis (other studies used women's self-reported cycle date). In these studies, no pregnancies occurred in the women who took ECPs before ovulation while pregnancies occurred only in women who took ECPs on or after the day of ovulation, providing evidence that ECPs were unable to prevent implantation. [International Federation of Gynecology Obstetrics, March 2012]