The questions not being asked in the Hobby Lobby and Conestoga Wood cases

Robin Fretwell Wilson Professor, University of Illinois College of Law
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Today the Supreme Court hears challenges by two family-owned companies — Hobby Lobby and Conestoga Woods — to the Obama administration’s contraceptive coverage mandate. The thrust of oral argument: Do companies employing hundreds or thousands of employees receive protection under the Constitution and the Religious Freedom Restoration Act when a government mandate forces owners to violate their religious beliefs?

Ironically, not a word will be said about the religious objection itself.

The companies contend the mandate forces them to pay for drugs and devices, like Plan B and ella, that “cause the demise of an already-conceived but not-yet-attached human embryo” by preventing it from implanting. For them, facilitating “abortion” is a “sin against God,” making the owners “accountable.”

From the get-go, the Obama administration told the public something very different: “Abortifacient drugs are not included.”

But in court, the administration concedes that contested drugs may “prevent implantation.” They had no choice. Objectors ripped their concerns from the drugs’ labels and FDA-prepared contraception guides, all of which indicate that the drugs can act after fertilization.

Yet, the Court will not “wade into scientific waters” because there is “no material dispute” about how the drugs work.

Sidelining a burning question does not make it go away. The truth matters greatly to ordinary people, not just religious objectors.

In 2005, 53 percent of Utah and Oklahoma women said they would not use drugs that act after fertilization but before implantation. In 2008, Southeastern women expressed deep discomfort with post-fertilization drugs — 47 percent believed “pregnancy begins with fertilization.” Religious beliefs were irrelevant; modest incomes mattered. Physicians recognize that women want to know if a drug works “after fertilization, regardless of their religiosity.”

How it is possible that the administration can both say that contested drugs are not abortifacients but may act after fertilization?

The administration measures pregnancy from completed implantation, objectors measure “life” from fertilization, days earlier. For both, a drug working after the critical point is an abortifacient — but each side uses a different point.

Mandate supporters contend that pregnancy is universally measured from “implantation.” Opponents counter that it is “universally accepted” that human life “comes into existence at fertilization.”

In truth, no unitary medical view exists. Some authorities measure pregnancy from fertilization; others, implantation. 28 percent of US Ob/Gyns say pregnancy begins at implantation, 57 percent say “conception.”

For women who care, separating fact from fiction is tough. Both sides lump all the drugs together, glossing over important differences.

Reviewing the scientific evidence, the Cleveland Clinic flatly concluded that Plan B works as an ordinary contraceptive, to prevent ovulation. Egg never meets sperm.

Not so with ella. Ella’s “mechanism of action varies” with a woman’s menstrual cycle. While ella definitely prevents ovulation, it may also “affect[] the ability of the embryo to either attach to the endometrium or maintain its attachment.”

Like the clash over abortion, the dispute over whether Plan B and ella act after fertilization generates more heat than light. Factual misconceptions are dangerous in both directions. In a 2004 Texas study, Latino women who believed that a drug works “at implantation” were “roughly six times” less likely to use it. Leading women to believe Plan B works post-fertilization is as wrong as not telling them about the possibility that ella may act after fertilization.

Only candor can empower women to make informed choices, guided by their own personal moral codes.

As the Supreme Court considers the abstract question of whether companies may assert religious defenses, no one should lose sight of the very real question for many: do these drugs end a life as each of us understands it?

Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law at the University of Illinois, where she directs the Family Law and Policy Program.