Scalia's pseudo-science complex: Phony claims, delusions and bogus ideas

These robed men may interpret the law of the land -- but it doesn't mean they understand how basic biology works

Published March 27, 2014 11:43AM (EDT)

Supreme Court Justices Antonin Scalia, John Roberts                                   (Reuters/Brendan McDermid/AP/Larry Downing/photo collage by Salon)
Supreme Court Justices Antonin Scalia, John Roberts (Reuters/Brendan McDermid/AP/Larry Downing/photo collage by Salon)

There is a reasonably good chance that the contraception requirement under the Affordable Care Act is going to fall apart because the owners of a chain of craft stores don't care how emergency contraception works. The medical reality is that emergency contraception prevents pregnancy from occurring, but this information is either ignored outright or treated like a matter that's up for debate by the business owners, politicians and commentators who seem to get the most airtime on the issue.

These delusions about contraception have also been embraced by certain Supreme Court justices eager to scale back reproductive rights in the United States.

Hobby Lobby founder David Green has said that his company objects to the new health care law because it requires that his company cover "abortion-causing drugs as part of our health insurance" -- a claim that was repeated by Justices John Roberts and Antonin Scalia during Tuesday's oral arguments in Sebelius v. Hobby Lobby Stores, Inc.

"You're talking about, what, three or four birth controls, not all of them, just those that are abortifacient," said Scalia while discussing the cost burden of denying employees contraception coverage. Roberts also seemed uninterested in medical accuracy about the methods of contraception in question when he asked Solicitor General Donald Verrilli, “Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions."

Verrilli responded that federal and state law support the medical consensus on the issue and "don't consider these particular forms of contraception to be abortion," but that was the only clarification on the matter in 90 minutes of oral arguments.

"It was very clear from the oral arguments that the justices aren't going to look behind the religious belief," Gretchen Borchelt, the director of state reproductive health policy for the National Women's Law Center, told Salon during a phone interview about the case. "The courts generally treat someone's religious beliefs as sincere, kind of no matter what they are. In other words, they are going to accept that it is their religious belief that [emergency contraception] is abortion -- even though it is not based in science."

The right, it seems, has a real love affair with bogus science. And all too often, they appear to be setting the terms of the debate. Just as medically refuted arguments about fetal pain at 20 weeks have been used to pass sweeping restrictions on abortion care, phony claims about emergency contraception have been embraced by the mainstream as acceptable science.

Which is why I reached out to Dr. Anne Davis, a reproductive health provider, associate professor of clinical obstetrics and gynecology at Columbia University Medical Center, and consulting medical director at Physicians for Reproductive Health, to explain the actual science behind emergency contraception. Below is a transcript of our conversation, condensed and edited for clarity.

Can you explain how contraception like Plan B One-Step works? 

Plan B is levonorgestrel. It's been around for decades as part of standard birth control pills, and Plan B is just the progestin that is in other birth control pills. That is important to understand because it works the same way birth control pills work. And the way that birth control pills stop people from getting pregnant is by preventing ovulation from occurring, and that is exactly how Plan B works.

The reason you have to take it right away -- if you are in that window where it will work for you -- is because if you're too close to ovulation, it won't work. It will only work if ovulation is getting started -- it has to stop ovulation before the ovary is even close to ovulating. If you take the Plan B too close to the time when ovulation is going to occur, it won’t work. You have to take it a few days before that.

It is quite ridiculous, on the face of it, to think that this medicine can cause an abortion when it can't even stop ovulation if it isn't taken at the right time. The window of time when Plan B can work is really small.

If you gave that levonorgestrel to a woman who is pregnant, absolutely nothing would happen. You could take the whole package -- you could give five packages to a pregnant woman -- and nothing would happen.

We actually give progestin to pregnant women to keep them from having premature labor. So there are treatments that stop people from having premature labor and miscarriages that are the same medicine, basically, as what's in Plan B — progestin.  So when you give them during the menstrual cycle they stop ovulation because they interfere with that process, but once ovulation has occurred -- it’s done. There’s no point in taking [Plan B] after that because it wouldn’t work, just like taking birth control pills after you’ve already ovulated doesn’t work.

Basically, Plan B is just a higher dose of birth control pills. It has absolutely no effect on anything that happens after ovulation -- which would be fertilization, implantation.

So if you object to things that stop ovulation, you could object to that, but it certainly doesn’t have a darn thing to do with abortion.

And what about ella, which is another form of emergency contraception that Hobby Lobby wants to opt out of providing? 

Ella is a new medication. It’s not the same as what's in birth control pills, it’s a different kind of medicine altogether.

It’s a selective, progesterone receptor modulator -- and this is a more complicated thing. The way it works to prevent pregnancy is it delays ovulation. When you give it to someone who is heading up to ovulation, it slows that whole process down at the level of the ovary so that ovulation doesn't occur until days later. So if there was an accident or unprotected sex and there is sperm around, you take ella; it pushes ovulation a few days into the future so by that time there’s hopefully no sperm there so you don’t get pregnant.

It's a different mechanism than Plan B, but it still works at the level of ovulation. But the important distinction between ella and Plan B is that ella is a lot more effective than Plan B. There are a couple of large studies that have been done where people were assigned one or the other, and the pregnancy rates were lower with ella than with Plan B. And that was part of a clinical trial, which is the gold standard.

We know that ella is more effective that Plan B, which kind of makes sense because once you get real close to ovulation, Plan B is not going to do it, but ella will push that process forward so you can avoid ovulation and avoid pregnancy.

We are trying to use it whenever we can because it’s more effective. Unfortunately, it has to be prescribed, while Plan B is now available over the counter. So if [unprotected sex or an accident] happens on Saturday night and you can’t get to the doctor for a prescription for ella, you are probably going to take Plan B.

So what about IUDs? What are those and how do they work? 

"IUD" stands for intrauterine device. It is placed by a provider -- a doctor or nurse -- and is used as contraception. One form of IUD -- the copper IUD -- can be used as emergency contraception.

That’s the other question I had, actually. There is some difference between getting a copper IUD placed as a method of emergency contraception and as a long-term form of contraception, right?

The way it works as birth control for a person who is an established user is that it is a pre-fertilization mechanism. So what is does -- both the copper IUD and hormonal IUD -- is it prevents the sperm from ever getting into the fallopian tube or to the egg. [People using IUDs] continue to ovulate, so it’s different than other methods that stop ovulation. What it does is interfere with sperm getting there.

With the copper ions in the uterus, that’s an environment that sperm can’t get to. For the Mirena or Skyla -- the hormonal IUDs -- the cervical mucus gets really thick; it’s like a glue, so the sperm can’t get through it. Normally cervical mucus mid-cycle is very slippery and the sperm can swim right through it. Basically the sperm can’t get past the cervix, and that’s how it works. Ovulation is happening, all of that is going on.  It’s just a way of preventing sperm from getting to where it’s going.

And what about using an IUD as emergency contraception? 

In that case, you put the IUD in right then and it does interfere in some senses with sperm -- this is only the copper IUD, by the way.

And here there’s also some effect after fertilization, before implantation. Let’s say fertilization occurred two days ago, and then you put the IUD in. Now what people sometimes forget is that fertilization happens in the fallopian tube. The sperm goes through the tube where the egg is. When a woman ovulates -- you can see that little picture in your mind -- fertilization occurs in the tube, not the uterus.

What people get confused about sometimes is thinking that the sperm and the egg are in the uterus and stick right there into the uterus, but that’s not what happens. How it works is the egg goes into the tube, the sperm can go through the uterus, up into the tube and then it could take a week to go all the way down the tube into the uterus and maybe implant. There’s at least a week there, so the IUD has an effect in that time -- from the time that it’s fertilized until implantation.

That's not how it works with regular birth control or other emergency contraception. But the copper IUD, when used as emergency contraception, is much more effective than the hormonal forms because it does work after ovulation has already happened. It really reduces your risk of pregnancy, but the hard part is that it's rare that a person will be able to walk into a clinic and get a copper IUD put in after unprotected sex.  I do [IUD implantations as emergency contraception] maybe twice a year.

So there is, in certain cases with the copper IUD, fertilization that occurs. 

An important distinction here is that fertilization is not the same thing as pregnancy for the very, very simple reason that these things take time. There are a lot of steps between fertilization and implantation being successful. For the average woman who is not on any kind of birth control, that process of fertilization is occurring over and over and over again and those women are not getting pregnant over and over and over again because many of those fertilizations never, ever implant.

There are all these things that have to happen for pregnancy to occur. I think if people think about the question of when a woman is pregnant, the answer seems pretty intuitive. When I go to somebody and ask, "How many times have you been pregnant?" I’m not asking, "How many times have you had fertilized eggs?"

These things are not the same. That isn’t a pregnancy, it’s just not there yet.

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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