Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, February 3, 2012

Mitt Romney, Conscience, and the Boston Globe's Mistakes

The Boston Globe is apparently so intent on impugning Mitt Romney and defending the Obama Administration's attack on religious freedom in the HHS mandate that it isn't letting facts get in the way. Today's Globe has a story about Governor Romney's support in 2005 of a requirement that all hospitals, including Catholic hospitals, provide sexual assault victims in an emergency room with Plan B contraception, which the Globe says is "similar" to the Obama Administration's current policy under the HHS mandate. The only problem with that charge of hypocrisy against Governor Romney is that the two policies are about entirely different things. When a number of states enacted requirements that all hospitals provide Plan B to sexual assault victims in the ER, the Catholic response was somewhat divided (summary article here), with the bishops of New York and Connecticut issuing statements agreeing to permit Catholic hospitals to follow the requirement. The USCCB Ethical and Religious Directives clearly permit administration of drugs to sexual assault victims to prevent pregnancy ("A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred," no. 36), though there has been considerable debate about whether hospitals should administer both an ovulation and a pregnancy test and whether Plan B acts as an abortifacient. See Daniel P. Sulmasy, “Emergency Contraception for Women Who Have Been Raped: Must Catholics Test for Ovulation, or Is Testing for Pregnancy Morally Sufficient?” Kennedy Institute of Ethics Journal 16, no. 4 (December 2006): 305-31, and Nicanor P. G. Austriaco, OP, “Is Plan B an Abortifacient? A Critical Look at the Scientific Evidence,” National Catholic Bioethics Quarterly 7.4 (Winter 2007): 703–707. What is clear is that the HHS mandate isn't about emergency care of sexual assault victims in Catholic hospitals but is instead a requirement that a range of Catholic institutions cover contraceptives (including Ella, a drug with undisputed abortifacient properties) and sterilization procedures in their health insurance plans. The underlying issues in disputes about conscience protection are important, and obfuscating the facts in different cases doesn't help.


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I believe it is not correct to say that Ella has "undisputed abortifacient properties," even when abortion is defined to include preventing implantation.

Posted by: David Nickol | Feb 3, 2012 11:10:56 AM

David is right - Sebelius and President Obama, at the very least deny that FDA-approved contraceptives include abortifacients. But that don't make it so.

Here are some excerpts from recent studies about ella (ulipristal acetate):

"[U]lipristal acetate demonstrates structural similarity to mifepristone, which when administered in a single dose terminates pregnancy..."

“Ulipristal exerts its pharmacological activity by binding to the body’s progesterone receptors to produce an anti-progesterone contraceptive effect on the ovary (by suppressing or delaying ovulation) and on the endometrium (by decreasing endometrial thickness).” Decreasing endometrial thickness makes it more difficult for an embryo to implant or for the uterus to sustain the pregnancy.

The European version of the FDA found the claim that "alterations to the endometrium may also contribute to the efficacy of the product" was "sufficiently documented."

Posted by: Eric Kniffin | Feb 3, 2012 12:41:10 PM

I take that back. In an interview this past Tuesday, Sebelius admitted that Plan B/ella prevent implantation, she just denies that preventing implantation is an abortion:

“The Food and Drug Administration has a category [of drugs] that prevent fertilization and implantation. That’s really the scientific definition. So it’s unfortunate there are some folks who continue to debate the science around fertility and what drugs do and do not do. These covered prescription drugs are specifically those that are designed to prevent implantation. They are contraceptives, they are not abortion pills.”


Posted by: Eric Kniffin | Feb 3, 2012 1:01:44 PM

Not quite a comment, but rather requested action:
Encourage our friends and family to at least copy and paste this link and contact our Senators and Congressmen: http://www.nchla.org/actiondisplay.asp?ID=292

Posted by: Michael | Feb 3, 2012 1:27:08 PM

Erik Kniffin,

Whether Ella prevents implantation is a matter of dispute. The package insert says:

When taken immediately before ovulation is to occur, ella postpones follicular rupture. The likely primary mechanism of action of ulipristal acetate for emergency contraception is therefore inhibition or delay of ovulation; however, alterations to the endometrium that may affect implantation may also contribute to efficacy.

This states what Ella does and what it *may* do. It may be possible, or it may even be probable, that Ella sometimes prevents implantation. However, to say that it has "undisputed abortifacient properties" is at best misleading. There is a known danger that it may terminate a "clinical pregnancy," that is, a pregnancy when conception and implantation have already taken place. In that sense it has abortifacient properties. That is why a pregnancy test must be done before it is used. However, if used as directed as an emergency contraceptive, there is no definitive evidence to prove it prevents implantation. It certainly *may,* but whether it does or not is not known and in fact may be impossible to prove.

Of course, by the definition of pregnancy favored by pro-lifers, a drug that prevents implantation is an abortifacient. Considering that 60% to 80% of early embryos fail to implant even in the absence of any outside interference, it makes *medical* sense to define pregnancy as beginning with implantation. But of course if a person is present from the moment of conception, then preventing implantation is equivalent to abortion.

Posted by: David Nickol | Feb 3, 2012 2:21:34 PM

"obfuscating the facts in different cases doesn't help."

It certainly helps in confusing the Booboise.

Posted by: CK | Feb 3, 2012 3:58:41 PM

FWIW, I think Eric and David are both right as a technical matter. I read David's description as more thorough and precise, and I read Eric's shorthand as technically correct, but with connotations or implications that might be wrong. Whether that rises to "misleading" is gray, at least as to post-implantation pregnancies.

As David rightly says, it is POSSIBLE for ella to terminate a pregnancy post-implantation. If it's possible to happen that way, then I think it has "undisputed abortifacient PROPERTIES," in that (1) the possibility is undisputed, and (2) the drug must have that "property" to make it even "possible" in some cases. A drug that mostly lowers blood pressure, but has a rare side effect of causing a heart attack, can fairly be said to have heart-attack-inducing "properties." The followup question is about the numbers, but the "property" exists in a nonzero sense.

On the separate question of fertilization vs. implantation, that's of course a big debate, but can't be used to defend Eric first statement, because it's not "undisputed." But that also means that it's not accurate to say that it's "undisputedly" a mere contraceptive, because it's not fair to say the Catholic "fertilization" view is not a valid "dispute," federal fiat notwithstanding.

Further, the history of the re-definition of pregnancy is illuminating. As I understand it, the entire medical community in the mid-20th century held the "Catholic" view of fertilization = conception = pregnancy. Those developing the Pill, along with other contraceptives, engaged in a concerted effort to re-define pregnancy as implantation for the specific purpose of keeping it on the "contraception" side, where acceptance was quickly growing, and away from the much-more-difficuly abortion area. So it was not a purely scientific reassessment, but was driven by social/political goals. Given that origin, it's certainly fair game to question it.

In fact, a recent survey showed that American doctors still lean toward the old-school definition, despite 50-plus years of redefinition the other way.

As for the massive natural rate of failure-to-implant, I admit that it has intuitive appeal, as an appeal to "natural law" of sorts. But does that imply that children are not "alive" until 6 months in a time/place where the infant mortality rate is 40% by six months? Also, some implantation definitions I've read specify "in the uterus," but ectopic pregnancies are still pregnancies. No ectopic pregnancy leads to a baby, ever -- the only question is whether mom suffers along with -- but that does not make it less a pregnancy. Further, early pregnancy hormones are detectable, with more expensive testing, within 48 hours of fertilization, WITHOUT implantation. A detectable condition, marked by changes in woman's hormones, is still pre-pregnancy? (The cheap, consumer tests rely on the later hormones, as I understand it. But it does not change the presence of the other kind.)

But regardless of anyone's side in the debate, the existence of these points of debate seems to me solid enough to call it a valid debate, without either side having a claim on a scientific "win" on their side.

Posted by: joe reader | Feb 3, 2012 6:23:05 PM