Why Antonin Scalia’s ‘Abortifacient’ Confusion is Dangerous

Supreme Court Justice Antonin Scalia testifies on Capitol Hill in Washington, Wednesday, Oct. 5, 2011, before the Senate Judiciary Committee hearing; "Considering the Role of Judges Under the Constitution of the Unit... Supreme Court Justice Antonin Scalia testifies on Capitol Hill in Washington, Wednesday, Oct. 5, 2011, before the Senate Judiciary Committee hearing; "Considering the Role of Judges Under the Constitution of the United States." (AP Photo/Evan Vucci MORE LESS
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Last month’s Sebelius v. Hobby Lobby case raised a number of interesting questions about the Affordable Care Act, contraception, corporations, and the Supreme Court. But it is also notable for a specific question asked by Antonin Scalia.

No, not whether certain forms of contraception were “terribly expensive stuff,” as memorable as that question is. But for the comment that preceded that question—that the only forms of birth control that Hobby Lobby didn’t want to cover were abortifacients.

Indeed, this is one of the arguments that Hobby Lobby has used all along to justify its refusal to provide comprehensive healthcare insurance: that the four methods in question—two kinds of IUDs and two types of emergency contraception—“can prevent an embryo from implanting in the womb” and are therefore tantamount to abortion. There’s no medical or scientific evidence to back up this claim; IUDs work by either preventing sperm from reaching an egg or preventing implantation, and emergency contraception works “by inhibiting or postponing ovulation, or the release of the egg, and this prevents fertilization from occurring.” Or, as a Hobby Lobby brief filed by a number of medical organizations, including the American College of Obstetricians and Gynecologists, American Women’s Medical Association, and Physicians for Reproductive Health succinctly put it: “Contraceptives that prevent fertilization from occurring, or even prevent implantation, are simply not abortifacients regardless of an individual’s personal or religious beliefs or mores.”

Whether the wealth of medical knowledge presented in the Hobby Lobby case will be enough to sway Scalia—or, more realistically, Anthony Kennedy—remains to be seen. And while it would be tempting to dismiss the “abortifacient” argument as a distraction dreamed up by the anti-choice movement, the reality is that a lot of people who feel a lot of different ways about abortion and contraception haven’t always received the best education about exactly how different methods of contraception work.

I grew up in the 1980s and 1990s, when the AIDS epidemic was making headlines and it was almost impossible to avoid talking about safe sex, even in small Midwestern college towns like mine. In middle school we saw a sex ed cartoon featuring Captain Condom and learned that Hitler might have had syphilis; in high school we talked a lot about condoms and dirty needles. But even in those relatively liberal times, when abstinence-only education was still the province of parochial schools and public schools in really conservative towns, we weren’t exactly getting in-depth breakdowns of how the pill worked versus the IUD versus the diaphragm.

It’s easy to say that there’s no harm in never learning this information; after all, not too many people outside of the reproductive health profession need to be fluent in the language of implantation, fertilization, and all those other multi-syllabic terms. And plenty of us—myself included—become more familiar with exactly how contraception works when we actually need to make it a part of our lives.

But this lack of knowledge makes it that much easier for misinformation to spread until it’s become accepted as fact. And it helps create a climate in which it’s acceptable to turn a blind eye to medical fact, at least when it comes to reproductive health and rights.

In the last several weeks, both the United States Court of Appeals for the Fifth Circuit and a federal judge have held that doctors in Texas and Arizona, respectively, must comply with an FDA protocol for prescribing abortion-inducing drugs, even though years of evidence has shown that the FDA protocol is outdated and requires an unnecessarily high dose of medication. This protocol also only approves the use of the pills through the seventh week of gestation, even though those same years of evidence has shown that they can be safely used through the ninth week. (Opponents of the Arizona law have asked the Ninth Circuit Court of Appeals to keep the law from going into effect.)

This dismissal of evidence-based medicine is troubling for women in both states, not to mention reproductive rights advocates and physicians. But these rulings should be alarming to anyone that believes legal decisions should be made based on facts and evidence, and kept free from social stigma and personal conjecture.

Sarah Erdreich is the author of Generation Roe: Inside the Future of the Pro-Choice Movement. She lives in Washington, D.C. with her family.

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