Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity.

• Author: Frank, Rachel

NOTE CONTENTS INTRODUCTION 210 1. THE MECHANISM OF EMERGENCY CONTRACEPTION: FACT & FICTION 213 A. The Process of Conception and the Physical Functioning of Emergency Contraceptives 214 B. The Myth of Abortifacients 220 II. MISSTEPS ACROSS THE BRANCHES OF GOVERNMENT 224 A. Fumbles at the FDA 224 B. The Trojan Horse Contraceptive Mandate Rollback 227 C. The Courts 230 1. Stormans 230 2. Hobby Lobby 232 III. REALIGNING SCIENTIFIC AND LEGAL UNDERSTANDINGS 234 A. Agencies 234 B. Courts 235 C. Politics and Public Education 239 IV. CULTURAL AND LEGAL IMPLICATIONS 240 A. Merging Contraception and Abortion 241 B. Conflating Moral and Factual Deference Under Roe 244 C. The Broader Context of Fact Versus Belief 246 CONCLUSION 249 INTRODUCTION

The battle over women's right to contraception has been long fought and yet seems to approach no end. The Supreme Court decriminalized contraception in 1965, (1) but Americans remain bitterly divided over whether contraception is a basic component of health care (2) or a means by which innocent third parties become complicit in abortions and nonprocreative sex. (3)

These debates play out in numerous spheres and have become increasingly salient in recent years. For example, changes to the Affordable Care Act's "contraceptive mandate" that previously required all insurers to provide free contraception to women now permit employers and other insurance providers to cite spiritual or moral opposition to contraception in order to avoid coverage, leaving female users to cover the costs. (4) Religious exemptions from mandatory contraception coverage have been litigated in courts at every level, including the Supreme Court in the seminal case Hobby Lobby. (5) State governments have also intervened by passing their own contraceptive mandates. (6)

Political objections to government- or employer-funded contraception range from objections to requiring men to support female-only health care (7) to concerns about promoting sex outside of marriage. (8) In recent years, social conservatives have raised a new objection: that certain forms of contraception cause abortions. (9) This objection has led insurance providers and pharmacists to refuse to provide those forms of contraception lest they be complicit in abortions. (10)

The objection is driven by the belief that certain forms of contraceptives act not by stopping ovulation (the mechanism of most forms of contraception), but instead by destroying an egg that has already been fertilized. Objectors call these contraceptives "abortifacients" because they believe that a pill that stops a fertilized egg from further developing causes an abortion. (11) Emergency contraception pills, commonly called "the morning after pill" or "Plan B," are the forms of contraception most commonly considered to be abortifacients. Antiabortion groups have rallied against abortifacients, most notably in the 2014 Hobby Lobby case. (12) Pharmacists have also asserted complicity-based objections to supplying abortifacients. (13)

Public discussion and litigation over refusals to be complicit in abortifacient-caused abortions have generally focused on whether or not a fertilized egg is a new life that ought to be protected. (14) The debate has thus centered on whether pregnancy begins when an egg is fertilized or later, following implantation of that fertilized egg in the uterus. Pro-choice advocates and most obstetricians say there is no pregnancy prior to implantation. Opponents of abortifacients disagree, and this dispute dominates the discourse about abortifacients. (15)

The dispute misses the point. In this Note, I show that litigants and the public at large ought to focus on how these forms of contraception actually function, because a proper understanding of the mechanism of so-called abortifacients makes clear that they do not cause abortion, no matter when one thinks pregnancy begins. The overwhelming weight of the evidence shows that Plan B and its cousin, Ella, work exactly like the common daily contraceptive pill--they stop ovulation. No egg is released, no egg is fertilized, and no fertilized egg is destroyed. Under either the pro-life or pro-choice definition of pregnancy, these "abortifacients" do not interfere with pregnancies. The term is therefore a misnomer, and as a result I will refer to Plan B and Ella as "emergency contraceptives" going forward.

Terming contraception abortive has significant social and legal effects. First, it casts the nation's political, moral, and religious opposition to abortion onto contraception without due cause. Misnaming contraceptives as abortifacients creates a false association with abortion that shapes contraceptive law and policy and impedes access to reproductive health care, making it harder for women to prevent unwanted pregnancies after unprotected sex, contraceptive failure, or rape. Second, as courts confront cases like Hobby Lobby that are foundationally reliant on the mechanism of emergency contraception, they incidentally alter our carefully crafted religious-freedom law. This happens when a court defers to a religious claim of opposition to abortion without recognizing the claim's foundation in a factual inaccuracy about how emergency contraception works. By overlooking this factual inaccuracy, the court gives religious deference to a factual claim--a phenomenon that is unprecedented, unwarranted, and carries potentially disastrous implications for broad swaths of constitutional law.

In Part I of this Note, I review the scientific evidence on the mechanisms of different forms of contraception and contrast this understanding with the public misunderstanding of how emergency contraception works. I do this to demonstrate the strength of the evidence that Plan B and other forms of emergency contraception are not abortifacients. In Part II, I discuss the entrenchment of our misunderstandings of contraception and ask who is to blame. I explore the failures of the Food and Drug Administration (FDA), the Department of Health and Human Services (HHS), and the courts to duly consider the evidence of the mechanisms of emergency contraception and discuss how that failure contributes to broad misinformation and restriction of rights. Part III then explores ways that agencies, courts, and the public can realign the scientific and legal understandings of emergency contraception to correct these errors.

Part IV centers on the far-reaching effects of this massive and ongoing public and legal misunderstanding, focusing on two ways in which it distorts law. I start with a discussion of how "abortifacients" have become a convenient tool to link contraception and abortion, dragging contraception into the embattled politics of abortion. I then connect our failure to reject this propagated misunderstanding to a shift in conscience-claim-deference regimes. Courts have begun to apply the deference typically reserved for moral claims ("abortion is wrong") to factual claims ("emergency contraception affects the implantation of a fertilized egg"). I consider the effects this undue deference will have on reproductive rights law as well as on claims under the Religious Freedom Restoration Act (RFRA) and Free Exercise Clause. I then place this improper conflation of facts and opinions into its broader legal context. I conclude with a silver lining: this hotly contested moral and political issue is capable of a resolution without picldng and choosing between constitutionally protected rights.

1. THE MECHANISM OF EMERGENCY CONTRACEPTION: FACT & FICTION

   The medical community stands firmly behind the understanding that the mechanism of emergency contraception is nonabortifacient. To understand how the American government and the majority of the general public came to misunderstand how emergency contraception works, one first needs a basic understanding of human conception. After providing these fundamentals, I discuss the different kinds of emergency contraception and compare them to daily contraception and mifepristone, the true "abortion pill." Finally, I analyze the research on different contraceptive mechanisms and assess its strength. As I will show, it was not until recently that this science became available and more recently still that its weight has made it irresponsible to ignore. (16)

   1. The Process of Conception and the Physical Functioning of Emergency Contraceptives

      There are three distinct stages of human conception: ovulation, fertilization, and implantation. (17) Ovulation begins when the female brain releases specific hormones that spike in the bloodstream, triggering the release of an egg. (18) Fertilization occurs when a female egg and male sperm meet. (19) Though it is commonly assumed that fertilization takes place during intercourse or very shortly thereafter, it can occur up to five days later. (20) This means that a woman can become pregnant if she ovulates and then has intercourse, or if she has intercourse and then ovulates within the next five days. After the egg and sperm meet, they mature into a blastocyst over an additional five to seven days. (21) When opponents of emergency contraception say that "life begins at conception," they typically mean at this stage, when the egg is fertilized but not yet implanted. (22) Finally, implantation occurs when the blastocyst burrows into the endometrium and begins to transform into the placenta and embryo. (23) Approximately fifty percent of all fertilized eggs are lost prior to implantation. (24) Most obstetricians and the FDA understand pregnancy to begin at implantation. (25)

      Emergency contraceptives function in the same way as other hormonal contraception, such as "the pill," (26) by preventing or delaying ovulation. Hormonal contraceptives disrupt the feedback system between the brain and ovaries, thus inhibiting the release of an egg. (27) The fact that women take emergency contraception after intercourse helps enable the perception that emergency...