Excuse Me? There’s No ‘Unsettled Science’ in the Contraception Challenges

According to a recent piece by Reuters, the Hobby Lobby and Conestoga cases are going to tackle the "unsettled science" of contraception. But there is no "unsettled science" here, no "scientific dilemma" concerning when pregnancy begins beyond one created by anti-choice activists.

Contraceptive coverage is essential and needs to be protected. Birth control pills via Shutterstock

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

In addition to launching hundreds of legal challenges to the contraception mandate in the Affordable Care Act, the religious right has launched a massive public relations campaign designed to confuse and cloud the issues taken up by the Supreme Court. So far those efforts have mostly been confined to arguments of “religious liberty” and the “right” of a corporation to exercise religious beliefs, though sometimes the truth slips out and business owners admit the litigation is mostly about not wanting the government to tell them what to do. But as the Supreme Court will soon hear arguments on those challenges, those PR efforts are shifting to familiar territory for abortion rights activists—to supposed “disputed science.” And, unfortunately, it looks like the media is playing right along.

According to this piece by Reuters, the Hobby Lobby and Conestoga cases are going to tackle the “unsettled science” of contraception. Excuse me, but there is no “unsettled science” here, no “scientific dilemma” concerning when pregnancy begins beyond one created by anti-choice activists. The question, framed by Reuters as “deceptively simple” of whether certain forms of birth control prevent conception or destroy a fertilized egg, is not actually a controversy or debate within the mainstream scientific and medical community. In fact, the mainstream scientific and medical community all agree that the vast majority of emergency contraceptives don’t prevent fertilization, and that pregnancy begins at implantation. But anti-choice activists have their own “science,” framed entirely by one simple question: How can we be so sure? Armed with that “science,” they’ve now launched a campaign to confuse the public and the courts.

It’s an effective strategy for raising doubt in the court of public opinion, as anti-choice activists have shown most recently by framing unconstitutional 20-week abortion bans as “fetal pain” bans or by promoting closing reproductive health-care clinics and creating expanses of hundreds of miles of health-care deserts as important to protecting the health of vulnerable women. But by raising that doubt in the court of law, anti-choice advocates are looking for something more; they’re looking for a way to provide conservative justices political cover for a ruling in their favor.

It’s a strategy that’s been in development for some time, and one that can be traced back to the battle over the federal ban on “partial birth abortions.” In 2003, Congress passed the “Partial-Birth Abortion Act,” a law that banned a specific type of abortion procedure known as an intact D&E (dilation and evacuation) without any exception for the life of the pregnant person. The law passed in part because of testimony from anti-choice activists who argued the medical community was undecided as to whether this specific type of procedure was ever necessary to save a woman’s health. Witnesses from mainstream medical groups argued against the bill as a dangerous intrusion into medical judgment, but to no avail. The law was eventually challenged, and in 2006 the Roberts Court sided with Congress, holding that so long as a matter of science is up for debate, lawmakers are free to pick a side in that debate in passing legislation if their doing so is reasonable.

The reaction from the medical community to that case, Gonzales v. Carhart, was biting. The New England Journal of Medicine published a piece criticizing the court decision, writing “[U]ntil this opinion, the Court recognized the importance of not interfering with medical judgments made by physicians to protect a patient’s interest. For the first time, the Court permits congressional judgment to replace medical judgment.”

The American Congress of Obstetricians and Gynecologists called the decision “shameful and incomprehensible” in a statement. “This decision discounts and disregards the medical consensus that intact D&E is safest and offers significant benefits for women suffering from certain conditions that make the potential complications of non-intact D&E especially dangerous,” the statement continued. “Moreover, it diminishes the doctor-patient relationship by preventing physicians from using their clinical experience and judgment.”

Advocates for the businesses challenging the mandate are hoping the Roberts Court will apply a similar logic used in Gonzales later this month and grant business owners the kind of leeway to dispute settled scientific matters as they have given Congress. The Hobby Lobby and Conestoga plaintiffs believe three forms of contraception induce abortion—copper intrauterine devices (IUDs); all forms of Plan B, including Plan B One-Step, which is sold over-the-counter; and prescription-only ella. It doesn’t matter that the scientific community vastly disagrees, they argue. Because they, the business owners, believe pregnancy begins at fertilization and that science can never be 100 percent right all the time, they argue there should be enough evidence for the court to give them a pass from complying with the law.

As a result of courts’ willingness to grant lawmakers the kind of pass that allows science to be disputed with the legislative equivalent of a “nuh uh,” we’ve got laws that require doctors to misinform patients about abortion causing breast cancer, not to mention a deepening climate change catastrophe and science curricula in public schools that present creationist theory as a viable alternative to biology. This is the logical extension of our false objectivism, and it has dangerous consequences.

Correction: A version of this article incorrectly noted that Plan B is sold to people ages 15 and older; it is in fact available over-the-counter to people of all ages. We regret the error.