Right-wing media have spent nearly a decade making false claims about birth control -- and now those falsehoods have found their way into the mouths of Supreme Court justices.
The Supreme Court on March 25 heard consolidated arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, which examine whether for-profit businesses can deny employees health insurance coverage based on the owners' personal religious beliefs, a radical revision of First Amendment and corporate law. The owners of Hobby Lobby and Conestoga argue they should not be forced by the government to provide their employees insurance which covers certain forms of contraception, because they believe those types of birth control can cause abortions.
The owners are wrong. Medical experts have confirmed they are wrong, repeatedly and strenuously, including experts at the National Institute of Health, the Mayo Clinic and the International Federation of Gynecology. The contraceptives Hobby Lobby objects to -- which include emergency contraceptives like Plan B and long-term contraceptives like Intrauterine Devices (IUDs) -- delay an egg from being fertilized, and as the former assistant commissioner for women's health at the FDA noted, "their only connection to abortion is that they can prevent the need for one."
Despite this overwhelming medical evidence, the myth that some of the contested forms of birth control are "abortifacients" has gone all the way to the Supreme Court -- and now has been repeated by some of the justices themselves. During the oral arguments in the Hobby Lobby case, Justice Antonin Scalia responded to a point made by Solicitor General Donald Verrilli, the lawyer for the government, by referring to "birth controls ... that are abortifacient."
JUSTICE SCALIA: You're talking about, what, three or four birth controls, not all of them, just those that are abortifacient. That's not terribly expensive stuff, is it?
GENERAL VERRILLI: Well, to the contrary. And two points to make about that. First, of course the -- one of the methods of contraception they object to here is the IUD. And that is by far and away the method of contraception that is most effective, but has the highest upfront cost and creates precisely the kind of cost barrier that the preventive services provision is trying to break down.
Justice Stephen Breyer, while describing the position of the Hobby Lobby owners, also referred to "abortifacient contraceptives."
This misunderstanding matters because it could determine the outcome of the case. In order to win, a majority of justices may have to understand there is a compelling government interest in facilitating equal access to contraceptives across health insurance plans. It is an entirely different and more difficult question if the justices examine whether there is a compelling interest in the government facilitating access to abortion. Even though federal law explicitly prohibits federal funding of abortion and these birth control methods are not abortifacients, if the justices mistakenly think abortion is involved, this case becomes far more dangerous.
So whether the employees of for-profit companies like Hobby Lobby are guaranteed access to basic preventative health care could ultimately come down to whether the justices act on the reality that these forms of birth control do not cause abortions. Whether for-profit companies are considered religious persons, a drastic change to constitutional corporate law, could come down to whether the justices act on the reality that these forms of birth control do not cause abortions. Whether the rights of gay and lesbian employees are respected, and whether taxes, vaccines requirements, minimum wage, overtime laws are all upheld could come down to whether the justices act on the reality that these forms of birth control do not cause abortions.
This simple lie about birth control could set up a chain of events that drastically alter health care by rewriting First Amendment and corporate law in this country -- and it's a lie that comes straight from the media, who have been pushing it for almost a decade.
Studies came out as early as 2004 pushing back on the idea that Plan B caused abortions, but Media Matters has repeatedly noted the tendency of journalists to get their facts wrong when addressing the issue. In 2005, CNN host Carol Costello gave a platform to a pharmacist who refused to fill a prescription for birth control pills because she thought they were equivalent to "chemical abortion." In 2007, Time magazine called the morning-after pill "abortion-inducing," while an AP article pushed the false Republican claims that emergency contraception destroys "developing human fetuses." In 2010, The Washington Times repeatedly equated emergency contraception to abortion.
And there was Lila Rose, the anti-abortion activist who in 2011 released videos heavily edited to deceptively portray practices at Planned Parenthood clinics, and who has equated contraception to "abortion-inducing drugs" which she claims exploit women. Rose and her mentor, James O'Keefe, defended their manipulation and falsification of evidence as "tactics" against the "genocide" of abortion, and she was supported and promoted on The O'Reilly Factor, Hannity's America, The Glenn Beck Show, The Laura Ingraham Show, while her work was been featured by Reuters, the Los Angeles Times, The Wall Street Journal, Washington Times, and National Review.
When the Affordable Care Act was passed in 2010, and medical experts including the Institute of Medicine recommended including comprehensive coverage for contraception as part of the preventative care provisions, right-wing media freaked out, calling it "immoral" and "a way to eradicate the poor." Fox News ignored the overwhelming support for the resulting contraception policy, instead pretending that Catholic hospitals and employers were being victimized -- even as exemptions and accommodations were included for churches and religious nonprofits. By 2012, Fox News' Michelle Malkin was referring to the contraception regulations as an "abortion mandate." Now, right-wing media figures have used the Hobby Lobby case and others to bring back this lie, from Fox News to the Wall Street Journal, while Rush Limbaugh and Laura Ingraham have become particularly fond of discussing these "abortifacients."
As Media Matters has previously explained, right-wing talking points demonizing birth control made their way into the amicus briefs presented to the court before the case was even argued, and Justice Scalia in particular has been known to repeat verbatim right-wing myths, such as the dubious idea that if the Supreme Court upheld the ACA the federal government could ultimately require consumers to purchase broccoli.
But the presence of the "abortifacient" lie during oral arguments takes this worrying tendency to a new level, raising the prospect that right-wing media's lies could potentially determine the outcome of a crucial case for religious and corporate law, hugely damaging reproductive rights in the process. If women lose the guarantee for their basic preventative health care, and corporations are granted even more flexibility as "persons" with religious rights, right-wing media will be partly to blame.