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More Birth Control Derp

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Defending his silly post, Sean Davis comes prepared with talking points:

He’s joined by Volokh’s Jonathan Adler:

I guess we have to work through this again:

  • The FDA warning labels are an anachronism. As the Irin Carmon post I linked to yesterday explains, “the amicus brief filed by the American College of Obstetricians and Gynecologists and several other medical associations, ‘there is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA affect an existing pregnancy.’  Instead, they prevent ovulation, so there is no egg to fertilize. That includes the longer-acting Ella: “There is no evidence that [Ella] affects implantation.'” (I know that was all in yesterday’s post too, but apparently Davis doesn’t read very carefully.)  The FDA warning label does not reflect the current understanding of scientific experts.
  • Even if we were to assume arguendo that Ella prevents implantation, it doesn’t end a pregnancy and hence doesn’t cause abortions.
  • The fact that most people who want abortion banned don’t want birth control pills banned makes it clear that they don’t think this either, or at least shows that they understand that their views are so widely unshared that they can’t be candid about the implications of their views.
  • I also note that the scientific inaccuracy of the belief that emergency contraception is an abortifacient is not, in my view, relevant to the merits of the litigation.  I agree with all nine justices in Hobby Lobby that the courts should be extremely deferential to claims of sincere religious belief.  It’s tempting in this particular case to question the sincerity of the expressed view, but it would be unwise.  Rather, the claims of Hobby Lobby and the other litigants should have failed because 1)the requirement that insurance plans cover contraception does not substantially burden the religious beliefs of employers, and 2)accommodating the employers leads to unacceptable burdens on third parties who do not share their religious views. 
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