September 30, 2014

The Obama Administration’s (Adminstration) mandate under the Patient Protection and Affordable Care Act (ACA) that nearly all employers cover certain contraceptive drugs and devices in any employee health plan (the Mandate)2 opened a new front in the American abortion debate. Religious objectors charge that coverage of six specific “abortion-inducing” drugs and devices is tantamount to providing an “abortion on demand.” The Administration and Mandate supporters insist that “drugs that cause abortion are not covered by [the Mandate].” This firestorm over such drugs and devices (together, emergency contraceptives or EC) reverberates far outside the Washington Beltway, spilling over to decisions facing women about whether to use EC after “unanticipated sexual activity, contraceptive failure, or sexual assault.”

This Article explores how it is possible that such wildly different claims can be made about the same drugs and devices, claims that create real confusion for real women who are deciding whether to use EC. It shows that both sides—Mandate supporters and opponents, family planning advocates and opponents of abortion—use conclusory labels to shorthand an extraordinarily complex and still-unfolding scientific understanding about how different kinds of EC work. Notwithstanding key differences in their mechanisms of action—that is, how the drug acts in a woman’s body—supporters and opponents alike lump all EC together as if they work by precisely the same mechanism, glossing over important differences.