Suit Claims Using Birth Control Pills Is Abortion

(WOMENSENEWS)–A case in federal court in Ohio may indicate a new line of challenges to reproductive rights, as an anti-choice plaintiff and her lawyers argue for the first time that dispensing a standard-issue birth control pill is the legal equivalent of performing an abortion and that anti-abortion pharmacists need not fill prescriptions for the pill.

Judge Herman J. Weber of the Southern District of Ohio in Cincinnati has accepted their arguments as plausible, placing on the court’s docket the very definition of when pregnancy begins. A pretrial hearing is set for May 18, a trial following in early summer.

Experts say that the accepted medical opinion says pregnancy begins when a fertilized egg is implanted in the uterine wall, usually six days after fertilization, but lawyers for the anti-choice druggist argue pregnancy occurs at the moment of fertilization.

The case revolves around the refusal of pharmacist Karen Brauer to sell in 1996 the birth control pill Micronor to a woman with a refill prescription at a K-mart in Delhi, a suburb of Cincinnati. Brauer lied to the customer and said no Micronor was in stock, according to court papers. After refusing to fill the prescription and then refusing to sign an agreement that she would fill Micronor and all legal prescriptions, Brauer was fired by K-Mart.

Three years later, Brauer filed a civil rights lawsuit, claiming religious discrimination under federal civil rights laws. Brauer claimed that selling the progestin-only "mini-pill" violated her rights under a Ohio law permitting people to decline to participate in abortion procedures–a law sometimes known as a "religious exemption" or "conscience clause." Ohio’s religious exemption applies only to abortion procedures and does not mention contraception, as do some current proposals pending in state legislatures.

Brauer is being represented by the American Center for Law and Justice, founded a decade ago by Pat Robertson of the Christian Coalition. The center has a $10 million annual budget and broadcasts daily radio programs to 100 Christian stations. The possible far-reaching ramifications of the case became apparent when Judge Weber ruled that the case could proceed.

Legal Opinion Would Extend Religious Exemptions to Birth Control Pills

His 22-page opinion extends religious exemptions on abortion to both birth control pills and to the activities of a pharmacist. It also does not rely on the standard medical definition of pregnancy as beginning with the implantation of a fertilized egg in the uterine wall and instead defines it as when the union of sperm and egg occurs. Implantation usually occurs about six days after fertilization.

Anti-choice publications and Web sites are calling the decision a legal victory.

Frances Manion, Midwest counsel to the American Center for Law and Justice, dismisses consumer concerns about access to contraception.

"This case is about accommodating people who find abortion abhorrent," he said. "What we’re talking about are drugs that are designed to prevent implantation of a fertilized ovum. This drug has a major mechanism that is abortifacient." The relevant Ohio law permits people to refuse "to perform or participate in medical procedures which result in abortion."

Medical experts disagree on all counts.

Medical Experts Say Plaintiff Confuses Pregnancy With Fertilization

Both the National Institutes of Health and the American College of Obstetricians and Gynecologists define the beginning of pregnancy as the time when the fertilized egg is implanted in the uterine wall–not the time of fertilization.

"The plaintiff is deluded and-or ill-informed," said Dr. Felicia Stewart, co-director of the Center for Reproductive Health Research and Policy in San Francisco and an expert on contraception.

Stewart added that neither the national institutes nor the medical organization for specialists in women’s health could say it was possible to have an abortion before a pregnancy begins, because the definition of abortion is the termination of an existing pregnancy.

"Interfering with implantation would not count," said Stewart.

Many fertilized eggs–cells barely visible to the eye–are washed away by a woman’s body prior to implantation, added Stewart. Even after implantation, 15 percent are shed naturally by the body.

In addition, all hormonal birth control, including breastfeeding and all contraceptive pills, can prevent implantation, according to a unpublished summary of the latest research on contraception by six leading experts on human reproduction, including Stewart and James Trussell Ph.D., among others.

Birth control pills act in multiple ways: They may inhibit or delay ovulation, thicken cervical mucus and trap the sperm, inhibit fertilization, alter the transport of sperm or egg within the Fallopian tube and impair the uterine lining’s receptivity to implantation.

Case Highlights That Anti-Abortion Agenda Extends to Contraception

Judge Weber wrote that Micronor has "a major abortifacient mechanism" and equated it with abortion. The judge stated that dispensing a pill fell within the definition of a "medical procedure" that results in abortion.

The judge’s decision said that K-Mart "does not assert a position as to when a human pregnancy begins." He said K-Mart took the position that the "fact that a termination of a pregnancy may occur on occasion does not make the termination purposeful," rather than making it clear that no abortion can occur prior to implantation.

Both K-Mart representatives at headquarters in Troy, Mich., and outside attorney Gregory Mersol in Cleveland declined to comment.

Reproductive rights attorneys are concerned about the implications of the case.

"Medical providers are in a better position to litigate than a retail store," said Eve Gartner, senior staff attorney at Planned Parenthood Federation of America. "These are medical facts. K-Mart may not be aware of the prevailing medical view," Gartner said. Planned Parenthood is reviewing possible legal strategies.

The case highlights how some anti-abortion agendas are also anti-contraception.

Brauer, identified as a member of Pharmacists for Life International in the organization’s literature, wrote prior to her lawsuit that she has similar objections to other birth control pills as well. "It should be mentioned that the new low-dose combination birth control pills are potentially abortifacient also," she wrote.

The anti-choice attack on standard birth control pills has been fueled by efforts to blur reproductive control methods, interchanging references to medical abortion and birth control, including emergency contraception.

Medical abortion (using Mifeprex, also known as RU-486 overseas) occurs after a pregnancy is established, within seven weeks of the last menstrual period. Emergency contraception (using Plan B, Preven) is taken within three days after intercourse and is not an abortifacient, according to the World Health Organization.

Micronor is not on the lists of emergency contraception regimens. Ortho-McNeil, the manufacturer, describes Micronor as safe and effective for women who are breastfeeding or who are sensitive to estrogen. Ortho-McNeil representatives said they were aware of the K-Mart lawsuit but did not comment further.

Cynthia L. Cooper is a free-lance writer in New York City who specializes in reproductive rights.