Contraception and Abortion

A major talking point in the Church's opposition to the contraception mandate has been that the mandate goes beyond requiring employers to cover contraception and requires them to pay for products that, in the Church's view, amount to abortion. For example, the Notre Dame complaint (.pdf) repeatedly claims that the mandate requires Notre Dame "to provide, or facilitate the provision of, abortion-inducing drugs." (see, e.g., para. 87, 90, 107, 109, 125, 140, 146, 147, 149, 156...and many more) The complaint asserts that, as a matter of fact, Plan B "operates by preventing a fertilized embryo from implanting in the womb." Count IX of the Notre Dame complaint claims that the mandate is illegal precisely because it violates the APA's commitment not to require employers to cover abortion services. When the complaint lists the services to which it objects, it routinely uses the following formulation: "abortion-inducing drugs, sterilizations, and contraceptives."Why this emphasis on abortion in a complaint to block the contraception mandate? The question is made a little more urgent by today's article in the New York Times reporting that the weight of scientific evidence is decidedly against the claim pressed by the Notre Dame complaint (and many Catholic opponents of the mandate) that Plan B "operates by preventing a fertilized embryo from implanting in the womb."

Let's just start by pointing out that this claim is grossly misleading even in terms of the claims made by Catholic commentators who oppose Plan B. They tend to concede that the drug operates primarily by blocking ovulation but argue that it MAY occasionally work by preventing implantation. The Notre Dame complaint's language suggests that blocking implantation is part of the design of the product and its primary mechanism for preventing pregnancy. Although the USCCB [official quoted in the article] continues to assert that the jury is out on Plan B's effects on implantation (a concession at odds with the certainty in the Notre Dame complaint) I found this study described in the NY Times to be particularly persuasive:

Later, in 2007, 2009 and 2010, researchers in Australia and Chile gave Plan B to women after determining with hormone tests which women had ovulated and which had not.None who took the drug before ovulation became pregnant, underscoring how Plan B delays ovulation. Women who had ovulated became pregnant at the same rate as if they had taken no drug at all. In those cases, there were no difficulties with implantation, said one of the researchers, Gabriela No, at theInstituto Chileno de Medicina Reproductiva in Santiago. Dr. Blithe of the N.I.H., said, No one can say that it works to inhibit implantation based on these data.

It seems likely to me that the desire among mandate opponents to blur the lines between abortion and contraception stems from at several sources. First, and most obviously, some Catholics take the principled, though in my opinion mistaken, view that contraception and abortion are equally part of a "Culture of Death" and self-gratification, etc. and so must be treated as equivalently incompatible with the practice of the Catholic faith.Although the hierarchy sometimes talks this way, there is no question that, in the domain of public policy, it usually treats abortion as a considerably more serious issue than contraception.If that's the case, then why mix the two together in the fight against the contraception mandate? I think there are two reasons that mandate opponents have taken this tack. The first is likely a concern that if a contraception mandate survives legal challenge, an abortion coverage mandate might as well. This is a legitimate concern, but it is also one that Church has itself helped to bring about. By arguing that any facilitation of the provision of contraception constitutes impermissible cooperation with evil, the Church has teed up its religious exemption claim in a way that, if it loses, the logic of the loss will extend to similar policies concerning activities that facilitate access to abortion. If the Church had made more fine grained distinctions about cooperation with evil based on the perceived gravity of the evil in question (for example, if it had argued that more proximate cooperation with contraception is permitted than with abortion because of the greater evil of the latter), it might have created the basis for distinguishing (as a legal matter) between the burden on the practice of religion imposed by a contraception mandate and an abortion mandate. Instead, it has decided, foolishly in my opinion, to go all-in on the contraception mandate as if it were just as much a challenge to religious freedom as an abortion coverage mandate, generating something of a self-fulfilling prophecy for efforts to distinguish contraception and abortion down the road.A second likely reason mandate opponents have blurred the categories between contraception and abortion is more political. Recognizing that lay Catholics (and many non-Catholics) are more in agreement with the Church's teaching an abortion than with its views on contraception, they likely hope that by emphasizing abortion and downplaying contraception, opponents of the mandate can build on the perceived legitimacy of concerns about being required to facilitate abortion. But to the extent that this political calculation contributes to the dynamic underlying the fear that the contraception coverage mandate might someday become an abortion coverage mandate, it seems extremely shortsighted.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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