Yesterday, the Supreme Court ruled that requiring closely held corporations, in this case Hobby Lobby and Mennonite cabinet makers Conestoga Wood, to provide health insurance coverage for methods of contraception that violates the companies owners’ sincerely held religious beliefs was not permitted under the Religion Freedom Restoration Act.
First, based on my own personal history, I have a passion for the specific methods of contraception being discussed in this case and the persistent myths surrounding them. After graduating from college, I spent a year running an emergency contraception (EC) hotline. At the time, EC was available only by prescription. When a woman would call, I would collect her information, ask her several medical questions, and have a prescription called in. I dealt exclusively with the hormonal EC levonorgestrel.
I like to tell people I prevented more abortions in that year than most people do in their entire life.
Now, some people – including the family that owns Hobby Lobby – would disagree with me because some people believe that EC is an abortifacient. Why do they believe that? Well, some people believe that life begins at fertilization and any drug that could prevent implantation of fertilized egg into the uterus (which is when the medical community defines the beginning of life) is an abortifacient not a contraceptive.
Any EC package you pick up clearly states the drug could prevent implantation.
So, are these people right?
No. Here’s why. Scientists get REAL finicky about statements of fact. They also get REAL finicky about proving said facts. Think back. How often does your doctor use the term “never” or “always.” Probably not very often. They don’t talk like that because scientific evidence deals in probability.
You can’t prove “always” because who the hell knows. You also can’t prove a negative. You can’t prove that something will NEVER happen. You can’t prove that EC will NEVER disrupt implantation because you can’t plant camera in every uterus that takes the drug (although give them time!) and make sure that never happens.
But guess what? I’m not scientist! I don’t have to follow their rules so listen up.
EC NEVER DISRUPTS IMPLANTATION. Period
It just doesn’t.
Here’s the best explanation I’ve found from the team at Science Friday (and if you can’t trust Ira Flatow who can you trust?!?)
“In addition to the available biological evidence, clinical research provides important insights about how EC works. The newest and most reliable evidence comes from two recent studies (published in 2007 and 2011) in which women who came to clinics for EC were monitored to assess each woman’s menstrual cycle day. Among women who took EC before ovulation, none became pregnant. The women who took EC on the day of ovulation or after became pregnant at the rate that would be expected if they hadn’t used any contraception. This provides compelling evidence that levonorgestrel EC works by inhibiting or delaying ovulation, but is ineffective after ovulation has already occurred (and therefore would not be effective in preventing the implantation of a fertilized egg).”
Did you catch that? If you take EC after ovulation when you be mostly likely be disrupting implantation and not fertilization, your chance of pregnancy is the same as if you took nothing at all. You know why? Because EC doesn’t disrupt implantation and if you’re putting all your eggs (pun intended) in the one basket of hoping that it does, you are shit out of luck.
Now, there is a second form of EC containing ulipristal acetate and mifepristone and there are no studies on that class of drug. However, the failure rate of this drug isn’t significantly lower than levonorgestrel EC and neither drug has a failure rate low enough to indicate they disrupt implantation.
Can we prove they NEVER disrupt implantation?
Nope, but they DON’T because if they did they’d work a hell of a lot better than they do at preventing pregnancy.
Now, Hobby Lobby has a problem with two of other forms of contraception that they define as an abortifacient – intrauterine devices (IUDs). IUDs can also be used as a form of emergency contraception if they are placed in the uterus within days after unprotected sex. Now, mind you, I have never known anyone to do this nor even HEARD about this approach during my time at Planned Parenthood. First of all, that is one dang expensive – not to mention invasive - form of emergency contraception.
But, I’m willing to cede that someone somewhere has probably done it. I’m also willing to cede the point that IUDs could prevent implantation precisely because they are so much more effective than hormonal EC. Of course, in taking IUDs off the table as a covered contraception choice, these companies are removing the most cost-effective and efficient form of birth control out there.
When I worked at Planned Parenthood, it was the most used form of contraception among providers aka doctors. IUDs are a particularly good choice is you don’t plan on having children for a while and are sensitive to hormones as the copper IUD is one of the few long-term contraceptives available that is hormone free. Choosing which contraception is right for you is a complicated decision and one that is now made more difficult for thousands of women who will have to decide if they want to bare the financial burden of that choice all on their own.
So, IUDs mostly likely prevent or disrupt implantation. The question then becomes should Hobby Lobby be required to cover a contraception they believe to be abortifacient based on the owners’ religious belief that life begins at fertilization?
For the Supreme Court, that question hinges in large part on whether these closely held corporations are legal “persons” under the Religious Freedom Restoration Act which prohibits the “government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.”
Now, the idea of corporations as legal persons is not new. Justice Alito has a lovely little paragraph about how this legal fiction is meant “to provide protection for human beings.”
“A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
Doesn’t that sound nice?
Here’s the problem. Corporate culture in its current form places a strong duty on directors and management to maximize profits for the corporation's shareholders. People make complicated decisions based on many factors. However, the management of a corporation makes decisions that keep shareholders happy so they don’t get fired.
Could the shareholders of a company come together and decide that they want to prioritize environmental sustainability over profits? I guess so. Does that happen very often? No.
That’s why you don’t hear much from Chick-fil-A’s Dan Cathy about gay marriage anymore. Chick-fil-A’s current profits maximization is built on expanding into college campuses, where a younger and less conservative demographic didn’t have the stomach for the Cathy family’s Christian politics. That’s why Hobby Lobby still buys products from China where there is state-mandated abortion because selling only American made products would eat into their products. It’s also why the company invested companies that manufactured emergency contraception. There was money to be made.
Look I'm not saying Hobby Lobby is some money-grubbing monster. They pay their employees far above the minimum wage. They work hard to assure the quality of workplace conditions for the workers who make their products in China. But still. Profit plays a role and it plays a big role and to act otherwise is foolish.
For example, limiting an employee’s contraceptive choice doesn’t affect profits so the calculus becomes a bit different.
So, “sincerely held” religious beliefs? I’m not so sure. Why I would never question the Green family’s individual faith? I do believe that ascribing a faith to a corporation whose motivations are much less complicated is problematic.
But let's not pretend Ruth Bader Ginsburg doesn't say it than I ever could.
“The Court, I fear has ventured into a minefield, by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed ‘for a religious purpose,’ ‘engage[d] primarily in carrying out that religious purpose,’ and not ‘engaged. . . substantially in the exchange of goods or services for money beyond nominal amounts.’”
