We ask judges to interpret the law — to adjudicate between different possible meanings of civil statutes. We don’t ask them, or want them, to settle religious questions. That’s not their jurisdiction.
So there’s a sense in which the majority opinion of the Supreme Court in the Hobby Lobby case was correct in those parts of the ruling that ignored the factual content of the purported religious beliefs of the billionaire Green family. The Greens’ claim that certain forms of contraception are “abortifacient” is not factually accurate. It contradicts observable reality — it is not true.
But again, it’s not the courts’ job to weigh in on whether or not religious claims are true — even when those claims are patently falsifiable. The Hobby Lobby ruling demonstrates the wisdom of that principle from both sides. The bits of that ruling that refuse to consider the factual validity the Greens’ claims make some sense. But then the ruling reverses itself, endorsing the factual validity of those claims without ever evaluating them, and thereafter it goes off the rails into lawlessness and incoherenece.
We’ll get to the ruling and its inconsistency on this point later. Here I want to discuss the factual “dispute” at the heart of the Greens’ bogus “abortifacient” claim.
The Greens and their supporters (many of whom are, or were shaped by, their support-ees) frame this dispute in a dishonest and self-serving way. They believe that IUDs and emergency contraception are “abortifacients,” they say, because of their religious belief that “life begins at conception.”
But that’s a dodge. This dispute is not about the belief that life begins at the moment of conception. It’s about the belief that conception occurs at the moment of ejaculation.
That’s not a matter of theological or philosophical debate. It’s just wrong.
That’s not how sex works.
But this, um, misconception fuels a lot of the opposition to emergency contraception in the US. If you mistakenly believe that conception occurs at the instant of ejaculation, then you’re going to assume that something called a “morning after pill” must be an abortifacient. You’ll be sure that if a pregnancy was going to occur, it would have occurred during the intercourse of the night before and, therefore, by the “morning after” it must be too late for contraception and this pill must really be inducing an abortion.
This is primarily a misunderstanding of the timeline — of how long it takes between the moment of Ohgodohgodohgodyes and the moment of fertilization. Those are not the same moment. They’re quite often not the same day.
It is possible for this to happen within the same hour, but that requires the Michael Phelps of sperm, ideal conditions, and the wind blowing out at Wrigley Field. But even with supersonic sperm, it’s never going to happen in less than at least half an hour. More often it takes a day or more — up to five days.
Ah, yes, but what if it did only take an hour or two? That’s possible, right? Intercourse at, say, 11:45 p.m.,* fertilized egg by 2 a.m. The “morning after” it’d be too late for contraception, wouldn’t it? So then it’s possible the morning-after pill could become an abortifacient if taken the next day, right?
Well, no.
Here’s what the morning after pill does if you take it after you’re already pregnant: nothing.
But isn’t it still maybe possibly conceivable that, in some rare cases, emergency contraception could possibly maybe interfere with a fertilized egg?
Scientists will answer yes. It’s not probable. It’s not likely. All the evidence strongly suggests that can’t and won’t happen. But scientists, being scientists, will always answer “yes” when you frame a question that way.
Ask Neal DeGrasse Tyson if a radical increase in atmospheric CO2 will result in climate change and he will answer, unequivocally, Yes. But if you ask him whether it’s possible — not likely, just possible — to imagine that some other unforeseen factor could possibly alter that result, and he’ll say that, yes, that’s technically possible. Tyson is a scientist — ask him to disregard likelihood and spin out possible imaginable scenarios and he could go on forever.
But it would be either foolish or dishonest to conclude therefore that Tyson doubts the link between CO2 and climate change.
And it’s just as foolish and/or dishonest to grasp at the slender straw of imaginable possibility as “evidence” that emergency contraception is an abortifacient.
That claim requires you to misrepresent “Medical science cannot with 100-percent positivist certainty rule out the rare and remote possibility of X” as “Medical science says X.”
And when you misrepresent things in that way, it tells the rest of us that you cannot be trusted.
But look, I get it. Those folks don’t trust me either. I do not share their belief that full human personhood begins at the moment of conception (and/or incorporation). And since I don’t share their belief about that, they’re not likely to listen to me when I try to explain that the instant of conception does not occur at the same instant as ejaculation — or even shortly thereafter.
And therefore they’re not likely to trust me when I try to explain that the “morning after” acts is a contraceptive and not an “abortifacient” — that it is, in fact, almost certainly useless as an abortifacient.
Fine. Don’t listen to me, or to the Mayo Clinic, or to your doctor.
Listen to Roman Catholic Cardinal Joachim Meisner of Cologne, a conservative Catholic who — with the approval of his friend, then-Pope Benedict XVI — ordered Catholic hospitals in his archdiocese to permit the use of emergency contraception.
Meisner is a conservative Catholic who believes that “life begins at conception.” But he does not oppose emergency contraception because he does not believe that conception begins at ejaculation. He does not believe that because that is not true.
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* I say 11:45 because my first apartment had a central, acoustically perfect “breezeway” and everybody kept their windows open all winter due to the overactive 1930s steam radiators. So everybody heard everybody else’s TV, the clank of dishes in their sinks, and any other … domestic noises.
My upstairs neighbors were like clockwork. Action News. Carson’s monologue. Squeak, squeak, squeak. Loud cry. Every night.
And good for them. Here’s hoping they kept at it all through the Leno years and they’re still keeping the same schedule in the Jimmy Fallon era.
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