Challenging the Contraception Provision: A plea for good medicine and pleader credibility

March 15, 2013

Medical LawThis Monday we will present a webinar through the West Legal Ed Center focusing on The Affordable Care Act’s Contraceptive Provision. As a prelude to this topic, we would like to explain our hope that litigants will focus on the actual legal disputes presented in these cases.

There are over 30 pending lawsuits challenging the minimum essential required benefits for women under a Regulation issued under the Affordable Care Act.  They are each and all challenges to the “contraceptive” drugs and counseling requirements of the Regulation, and they are each and all based on claims of protected exercise of religion under the U.S. Constitution.  See University of Notre Dame v. Sebelius.

This is a plea for requesting a ruling on the contraception provision actually at issue in these cases, and, as future cases are filed and existing complaints are amended, for leaving out allegations raising headlines but not necessarily raising justiciable legal or factual issues.

As would be reasonable to expect, the cases present similar allegations and common issues in presenting the same or similar challenges to an HHS Regulation.  “HHS announced guidelines requiring health plans to cover contraception and abortion-inducing drugs.”

This Regulation in the view of many people including Judges does not require “abortion-inducing drugs” as rational people can understand that term.  On the other hand, another view of the situation has it that reasonable people can include blocking the implantation of a fully fertilized egg into a womb, which one of the drugs at issue apparently does, in the definition of abortion.  Knowledge of biology is of great help in understanding these particular legal and medical issues.

To return to the pending litigation, the Plaintiffs in these cases all or mostly all allege that they base their claims on their sincerely held religious beliefs, among them that contraception is against the exercise of their religion.  They pretty uniformly allege in these lawsuits that they are being forced to pay for other people to choose contraception when they themselves are opposed to it.

The Regulation which these people, corporations and associations challenge does indeed require the provision of Health Insurance Coverage for certain drugs and services.  One religious challenge is to the undisputed fact that the drugs at issue are contraceptives.  Another challenge is to the disputed fact that the drugs at issue cause abortions.

Many of the complaints previously filed in these pending cases challenge the Regulation on the ground that the Regulation would effectively require the Plaintiffs to indirectly fund abortions by their employees by providing them minimum essential health benefits which, according to the Plaintiffs’ allegations, include abortion.  (It is worth remembering that the Affordable Care Act actually prohibits funding abortion, some say even more strictly than all other Federal laws taken together.  That is not a fact subject to proof by introducing competing beliefs.)

Two of the main drugs which Plaintiffs in these cases find unacceptable are “Plan B,” also called “the morning after pill,” and “Ella”.  They and the Courts that have believed them so far, also allege that the FDA is their authority.

Here is what the FDA says about how both “Plan B” and “Ella” actually work.  This is not a recommendation for using either of these drugs, but you do not have to recommend their use in order to understand what they are used for.  Understanding how the FDA, the source of this information cited by many parties and by many Judges, describe the biology of how these drugs work is a pretty uncomplicated matter, actually.

The FDA writes that both drugs work mainly by stopping the release of an egg from the ovary — which by anyone’s definition cannot be abortion since there is no fetus or embryo.  Stopping a fetus or embryo from happening is called contraception, not abortion.

These drugs also work by preventing fertilization or implantation of the egg in the first place — and here as they say is the rub.  One group of thoroughly rational people is of the view based on this biological evidence that where there is no fertilization there is no conception, and thus no abortion.  However, if instead the egg is fertilized but still requires attachment of the egg to the womb in order to complete the pregnancy leading to the birth of a baby, then again one group of rational people is of the view that in such a case there is no conception but instead contraception and not abortion.  On the other hand, another group of people strongly take the view based on the same biology that preventing a fully fertilized egg from attaching to the womb can be viewed as abortion, to them the moral equivalent, if you will, of surgically removing a fertilized egg from the womb after it has attached to the womb or after a fertilized egg has been “implanted”.

So, to the extent that the parties and their lawyers present their claims in these cases as a request to Courts to resolve the moral issue of whether contraception is really abortion by another name, they are probably requesting Judges to decide issues which Judges here on earth are not equipped to decide.  By making these assertions, however, it may be that such parties can broaden their popular appeal to include many who reject abortion but are otherwise unwilling to equate contraception with abortion.

If instead the parties and their lawyers in cases challenging the Federal Regulation concentrate on the legal issues at hand, they probably have a much better chance of prevailing on the merits than many of their claims and allegations currently seem to imply.

These are good reasons to allege good medicine and the rights that are actually at issue, and then let the Courts decide on the basis of how things really are, not how some parties and their lawyers might or might not wish them to be.

West Legal Education Center will present a Webinar on Monday, March 18, 2013 from Noon – 1:00 P.M. ET, “Religious Issues in the Supreme Court:  The Affordable Care Act’s Contraceptive Provision“.