Sunday, May 8, 2022

Alito's Embrace of Junk Science Will Make Several Forms of Contraception Illegal

The potential that Roe vs Wade will be overturned by the Supreme Court in a few weeks has led to a lot of speculation about what comes next. All of the possibilities need to be taken seriously, but when it comes to the radical right going after contraceptives, that move is actually already underway - and the path was laid by Justice Samuel Alito's embrace of junk science in the Hobby Lobby case. 

If you remember, Hobby Lobby claimed a religious exemption to the Obamacare mandate that companies provide coverage of birth control in their health care plans. But it wasn't all forms of birth control they objected to.

The Affordable Care Act says that employer-provided insurance must include essential health benefits, including all medically authorized forms of contraception. The owners of Hobby Lobby objected to this requirement, because they believe that four common forms of birth control—two versions of the “morning-after pill” and two kinds of intrauterine devices (IUDs)—are “abortifacients.” In other words, the owners of Hobby Lobby think these contraceptives end pregnancies rather than prevent them. And they believe that is tantamount to ending a life.

To understand what's going on with that it is important to know that, for many on the radical right, "life" begins at the moment an egg is fertilized. It takes about a week for the fertilized egg to implant in the uterus, which is when the American College of Obstetrics and Gynecology (ACOG) says that pregnancy begins. That is because most fertilized eggs naturally fail to implant in the uterus on their own.

The owners of Hobby Lobby claimed that the four forms of birth control they didn't want to cover (Plan B, Ella, hormonal IUDs, and copper IUDs) are abortifacients because they prevent a fertilized egg from implanting in the uterus. That is a perfect example of junk science

[B]oth Plan B and ella work primarily by preventing ovulation; they can work for up to five days after sex, because sperm can survive in a woman’s body for that long. Both the hormonal and copper IUDs work primarily by preventing sperm from reaching and fertilizing an egg. Of all these methods, only the copper IUD, when used as an emergency contraceptive, appears capable of preventing implantation of a fertilized egg. However, even then it would not be considered an abortion under standard medical and legal definitions.
Justice Alito wrote the majority opinion in the Hobby Lobby case, which included this statement:
[W]e must decide whether the challenged…regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.
Alito went on to write that these four contraceptive methods “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus." Alito didn't reach that conclusion out of ignorance of the science because, in a footnote, he acknowledged that Hobby Lobby’s religious-based assertions are contradicted by science-based findings. Nevertheless, in a conflict between religion and science, Alito went with religion.

Since Alito's draft overturning Roe was leaked, red states all over the country are resurrecting or passing legislation to outlaw abortions. It is important to note that many of them claim that life begins at fertilization - after which abortion will be illegal. And since Alito embraced junk science, he set a Supreme Court precedent that these four forms of birth control are abortifacients. So in many states, they will be illegal too. 


  1. I'm old enough to remember Paul VI deciding artificial contraception was "evil" and to be avoided by good Catholics. That was 1968. What followed was not widespread adherence to the pope's encyclical but a mass exodus of the church by the next generation who believed Catholic teachings were incompatible with modern society. (The never-ending scandals of sexual abuse of children didn't help to retain members either.)

    The moralizing radicals on the Supreme Court and in the Republican Party aren't going to win any converts. Unlike the Catholic Church, they can try to enforce their rules. But ultimately they will fail, whether it takes another election or another generation to get rid of them. It's disgusting that it's come to this, but the fight is on and there will be no surrender.

    Much of the coverage these days is framing the news as a GOP attack on women. Understandably. It clearly is. But I wonder how dumb some men must be to think it's not an attack on them as well. Contrary to the asshole on the steps of St. Patrick's in that viral video going around, among the great beneficiaries of legal abortion and contraception are men themselves. Last week I was chatting with friends from my schooldays, remembering guys in high school and college who never would have made it through school if not for legal medical measures to avoid or end pregnancies. Otherwise, they'd have lived different lives. Their careers and families to come may never have happened. Anyone who thinks abortion and contraception are issues for women and women alone have a lot to learn.

    1. I'd agree with that. If there's any man who thinks, as most do, that abortion is a matter of choice (except, in some polls, quite late in term) but only a woman's issue, he should ask himself how he'd then feel if a woman carried the child to term without his support. Of course, a man who writes anything off as a woman's issue is problem, but that's another matter.

      Bear in mind that Alito would have an answer: adoption. That does bring out, though, how lame his opinion is. Merely moving from abortion isn't a right to what to alternatives is suspect. Not strictly contradictory, since an opinion may rest on more than one grounds, but still. What if, say, barring segregated schools was followed by "if that makes you comfortable, remember you can always home school."

      It's doubly suspect because the originalists claim not to rest on factual matters and other changeable conditions. I've already raised the objection that protections of those accused of a crime shouldn't then matter if prison conditions were ok! And even then how clear is it? Were drop-off options always available? Really? Proof? If not, does the opinion rest on recent changes in practice, and when/how did that occur? I sure didn't notice. How certain is he that a woman who leaves an infant won't be prosecuted for child neglect? How about the father at that? And if the opinion rests on the availability of this option, does that mean that a state that bars abortion must legally make this option available, providing and funding it? I hadn't noticed that in Alito's reasoning. As for whether a man or woman would feel comfortable choosing that adoption, I suppose he isn't realistic or just doesn't care. That'd be the language of (ooooh) choice!

      But it's a preposterously bad opinion from start to finish, as has already been discussed. The history Alito cites has been widely contested, but don't forget, too, that it seems to come down to the whole idea that if something used to be accepted if contested, it can never be changed, which would oblige women, gays, blacks, and others to accept "their place."

  2. Governors and state legislators in red states seem excited to inflict punishment -- up to death -- on women who receive abortions. How will they punish those who use illegal contraception? A fine? Jail time? The stockade? Just curious.

  3. SCOTUS decision made on the opinion of a misinformed and poorly-studied member. 'Justice' as I recall, is the form of addressing grievances in a 'just and honest' manner. It does not comprehend retribution as a method because retribution does not address justice any more than a 'pound of flesh' admonition from Shakespeare's time. The state does not have the right to intervene in this issue at all. But, it continues a lineage of old, white male dominance over women, and that simply continues the chattel status of those humans deemed 'second class' at the time the Constitution was debated and decided. Nancy's reference to 'junk science' is absolutely correct; more so, her exposure of Alito's intransigence (and the HL decision) is once again to descend the status of women as unequal in the eyes of the law. Best bumper sticker of the era for this issue is: Don't like Abortion?? ----Don't have one. (of course, this identifies that the decision belongs solely to the woman (and her doctor).

    1. If I may be allowed a recommendation, Dahlia Lithwick in Wednesday's slate has an awesome rundown of how much, if Alito's idea of rights is taken seriously, women stand to lose. One she repeats, since she can't resist the irony: women would have a place on the court.

      The Thursday NY Times now has an article debunking much of Alito's American history and claimed global status of abortion rights. While it's only a technical fact check, with no impact on ordinary coverage of the case and no doubt little to no impact, it's still extraordinary. I don't believe the paper has ever dared look at a judicial opinion by, after all, legally an expert and pronounced it just plain wrong. As for global status, it's depressing how much America since Trump has diminished our standing among nations. Biden's leadership on the Western response to the Ukraine invasion has been admirable and helped change that, but there, alas, the American people and the media are less impressed.

    2. So sorry: "women would NOT have a place on the court."


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