Emergency Contraceptives or 'Abortion-Inducing' Drugs? Empowering Women to Make Informed Decisions

Abstract

The Obama Administration’s (Adminstration) mandate under the Patient Protection and Affordable Care Act (ACA) that nearly all employers cover certain contraceptive drugs and devices in any employee health plan (the Mandate) opened a new front in the American abortion debate. Religious objectors charge that coverage of six specific “abortion-inducing” drugs and devices is tantamount to providing an “abortion on demand.” The Administration and Mandate supporters insist that “drugs that cause abortion are not covered by [the Mandate].” This firestorm over such drugs and devices (together, emergency contraceptives or EC) reverberates far outside the Washington Beltway, spilling over to decisions facing women about whether to use EC after “unanticipated sexual activity, contraceptive failure, or sexual assault.”

This Article explores how it is possible that such wildly different claims can be made about the same drugs and devices, claims that create real confusion for real women who are deciding whether to use EC. It shows that both sides — Mandate supporters and opponents, family planning advocates and opponents of abortion — use conclusory labels to shorthand an extraordinarily complex and still-unfolding scientific understanding about how different kinds of EC work. Notwithstanding key differences in their mechanisms of action — that is, how the drug acts in a woman’s body — supporters and opponents alike lump all EC together as if they work by precisely the same mechanism, glossing over important differences.

Compounding the competing explanations about how EC works is the fact that both sides mean very different things when they claim something is or is not “abortion-causing.” Mandate supporters contend that pregnancy begins when “a pre-embryo completes implantation,” while objectors believe the “life of every human being [begins at] the moment of conception/fertilization,” making its destruction “the killing of an innocent person.”

For women contemplating EC, separating “fact from fiction” is no easy task: “Since the approval of [ella] . . . there has been even more confusion and controversy.” Precisely because of “myths” swirling around “in the popular press and on the internet,” some women are now asking “tough questions about mechanisms of action.”

While it is easy to some to discount concerns about whether EC works after fertilization as a form of “zygote worship” shared only by religious zealots, many women of child-bearing age remain torn over using EC. For some, these qualms flow directly from their belief that life begins at fertilization. Although not an universally held view, deeply personal views about the beginning of life raise the question: Shouldn’t doctors have an “open and honest conversation[ ] in layman’s terms regarding EC, its benefits, and its potential consequences and let the patient make her own decision”?

This Article maintains that a physician’s “guidance on how and when to use [EC]” is necessary to equip women with the information needed to make informed decisions about their bodies and healthcare, guided by “their own moral or religious beliefs.” Part II briefly recaps how the Mandate reinvigorated public concerns about abortion. It shows that religious objectors lifted their concerns about the contested drugs and devices directly from each label approved by the the Food and Drug Administration (FDA))-approved labels for each — as the Administration concedes in the litigation over the Mandate presently before the U.S. Supreme Court. Part III then assesses the conflicting claims made by both sides about how the contested drugs and devices actually work, focusing on two:, Plan B and ella. This Part shows that since Plan B’s approval in 1999, it has never been shown to work after fertilization — despite statements on its own label. By contrast, ella is believed to “have an additional action of affecting the ability of the embryo to either attach to the endometrium or maintain its attachment, by a variety of mechanisms” after fertilization. As Part IV documents, significant numbers of women care deeply about whether a given drug acts after fertilization to prevent or disrupt implantation.

Part V turns to the two prevailing standards for determining what patients should be told when providing fully informed consent to a treatment — the professional standard and the material risk standard. This Part concludes that under either standard, doctors have a duty to help women decipher the dense, technical explanations found on the FDA-approved labels if women are to make informed decisions to use EC guided by their own values. In doing so, physicians can add much-needed clarity to an issue muddied by political rancor, while enhancing the autonomy of the very women the Mandate sought to empower and assist.