DOJ to Supreme Court: Killing Human Embryo in Womb is Not Abortion

March 23, 2014 - 9:46 PM

Donald Verrilli

U.S. Solicitor General Donald Verrilli (AP Photo/Evan Vucci)

The U.S. Justice Department is telling the Supreme Court that killing a human embryo by preventing the embryo from implanting in his or her mother’s uterus is not an "abortion" and, thus, drugs that kill embryos this way are not "abortion-inducing" drugs.

On Tuesday, the Supreme Court will hear oral arguments in the case of Sebelius v. Hobby Lobby. The crux of the administration’s argument in this case is that when Christians form a corporation they give up the right to freely exercise their religion--n.b. live according to their Christian beliefs—in the way they run their business.

It is in the context of this case, that the administration is making its argument that killing an embryo seeking to implant in his or her mother's womb is not an abortion.

The dispute involves a regulation that Health and Human Services Secretary Kathleen Sebelius issued under the Affordable Care Act. This regulation says that virtually all health insurance plans must cover, without any fees or co-pay, all FDA-approved “contraceptives.”

But what the FDA and the regulation call “contraceptives” include drugs and devices that sometimes work not by preventing conception but by ending a human life after conception. In other words, in these circumstances, the mandated drugs and devices are not contraceptives at all, but post-conception killing agents.

When the Justice Department petitioned the Supreme Court to take up the Hobby Lobby case last September, the administration conceded in its petition that among the mandated drugs and devices were some that did indeed prevent human “fertilized eggs”—n.b. human embryos--from implanting in their mothers’ wombs.

“The FDA has approved twenty such methods, ranging from oral contraceptives to surgical sterilization,” Solicitor General Donald Verrilli said in the administration’s petition asking the Supreme Court to take up the case. “Four of the twenty approved methods—two types of intrauterine devices (IUDs) and the emergency contraceptives commonly known as Plan B and Ella—can function by preventing the implantation of a fertilized egg."

In a footnote, Verilli added: “Both the government and the medical amici supporting the government concede that at least some of the contraceptive methods to which the plaintiffs object have the potential to prevent uterine implantation.”

According to a collection of citations posted on a Princeton University website, medical dictionaries, embryology texts, and a federal commission, have all defined fertilization as the beginning of a new human life with the formation of an embryo.

An “embryo,” says the Harper Collins Illustrated Medical Dictionary, is “[a]n organism in the earliest stage of development; in a man, from the time of conception to the end of the second month in the uterus."

"The development of a human begins with fertilization, a process by which the spermatozoon from the male and the oocyte from the female unite to give rise to a new organism, the zygote,” says  the text of Langman’s Medical Embryology.

An “embryo,” said the U.S. government’s 1997 National Bioethics Advisory Commission on Cloning Human Beings, is “the developing organism from the time of fertilization until significant differentiation has occurred, when the organism becomes known as a fetus.”

Even though science says human life begins at “fertilization,” the Obama Administration claims in its brief to the Supreme Court in the Hobby Lobby case, which was filed in January, that the Green family, which owns Hobby Lobby, came to this conclusion as a matter of “religious conviction.”

“The Greens maintain the sincere religious conviction that human life begins at conception, that is when sperm fertilizes an egg,” Solicitor General Verrilli said in the brief.

But this is not true.

In their original complaint in federal court and in their brief to the Supreme Court, the Greens do not state—as the administration contends—that they have a “sincere religious conviction that human life begins at conception.” What they do state is that they have “a sincere religious objection” to providing coverage for drugs and devices that kill human embryos—which, as per the science recorded in embryology texts, come into being at fertilization.

“Plaintiffs have a sincere religious objection to providing coverage for Plan B and Ella since they believe those drugs could prevent a human embryo—which they understand to include a fertilized egg before it implants in the uterus—from implanting in the wall of the uterus, causing the death of the embryo,” the Greens said in their original complaint in federal court.

“Plaintiff have a sincere religious objection to providing coverage for certain contraceptive intrauterine devices or ‘IUDs’ since they believe those devices prevent a human embryo from implanting in the wall of the uterus, causing the death of the embryo,” the Greens told the federal court.

“Plaintiffs consider the prevention by artificial means of the implantation of a human embryo to be an abortion,” said the Greens.

In their brief to the Supreme Court, the Greens point out that the government has conceded that there is no dispute about the fact that the drugs and devices the administration is trying to force Christian business owners to cover can in fact prevent a human embryo from implanting in the womb.

“The government concedes in its petition, as it has throughout this litigation, that the drugs to which Respondents object can prevent an embryo’s ‘implantation’ in the womb,” said the Green’s brief.

“Based on that concession,” says the Green’s brief to the Supreme Court, “the en banc court found ‘no material dispute’ on the issue, and, thus, that the court ‘need not wade into scientific waters here.’”

The issue then is not when human life begins. Science has long since settled that.  Nor is it whether the drugs and devices mandated by the government can end a human life by preventing a human embryo from implanting in the uterus.

The question is whether the government can force a Christian business owner to cooperate in ending a human life by that means.

In its final brief to the Supreme Court, the Obama administration again conceded that the drugs and devices the administration wants to force Christian business owners to provide coverage for can act by preventing a human embryo from implanting in the uterus.

“According to FDA-approved product labels, a copper IUD is a device inserted into the uterus by a health care providers that works ... possibly by preventing implantation (of a fertilized egg in the uterus),” says Solicitor General Verrilli in this brief.

“Plan B is an emergency contraceptive in pill form that ... may inhibit implantation (of a fertilized egg in the uterus) by altering the endometrium, but it is not effective once the process of implantation has begun.”

“Ella, another emergency contraceptive, is a pill that ... may affect implantation (of the fertilized egg in the uterus),” Verrilli told the court.

Having repeatedly conceded that the drugs and devices the administration wants to force Christian business owners to buy for their employees can in fact terminate the life of a human embryo by preventing “implantation,” the administration is now arguing to the Supreme Court that terminating the life of a human embryo by preventing the embryo from implanting in the womb is not an “abortion.”

“Although respondents describe the devices and drugs as ‘abortion-inducing,’” says the administration’s brief to the court, “federal law, which defines pregnancy as beginning at implantation, does not so classify them.”

The administration attempts to establish this claim—that terminating a human life by preventing implantation is not an “abortion”—by pointing the court not to a statute enacted by Congress, but to a federal regulation issued during the Clinton administration.

This regulation--62 Fed Reg 8611 (Feb. 25, 1997) 45 CFR 46.202(f)--was promulgated by the FDA. It addressed what it called “postcoital emergency contraception” and said it was “intended to encourage manufacturers to make this additional contraceptive option available.’

Like the Obama administration’s argument to the Supreme Court, this FDA regulation conceded that what it called “emergency contraception” may in fact prevent a post-conception “fertilized egg” from implanting in the uterus.

The regulation does not use any form of the words “abort” or “abortion," but it does say this: “Taking ECP’s [Emergency Contraception Pills] provides a short, strong, burst of hormone exposure. Depending on where you are in your cycle and when you had unprotected intercourse, using ECP’s may prevent ovulation, disrupt fertilization, or inhibit implantation of a fertilized egg in the uterus.”

So, the FDA and the Obama Administration want Americans to believe an "emergency contraceptive" can act post-conception to kill a "fertilized egg"--but that does not mean it induces an abortion.

It just kills a human being.