The Yale Law Journal

October 2019

Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity

Reproductive RightsHealth Law

abstract. Scientific evidence overwhelmingly shows that the categorization of Plan B and other emergency contraceptives as “abortifacient,” or abortion-inducing, is incorrect. The FDA, federal courts, and the executive branch compound and entrench this misunderstanding by relying on it as a foundation for contraceptive law and policy. This Note traces the development and consequences of this collective error and proposes solutions. It then considers the role of emergency contraception in two worrying legal developments. First, the mistaken categorization of emergency contraception blurs the distinction between contraception and abortion, shifting contraception into the morally contested space that abortion occupies. Second, it breaks new constitutional ground by stretching the deference usually reserved for litigants’ moral claims to factual assertions.

author. Yale Law School, J.D. 2019. I am profoundly grateful for the guidance of Reva Siegel and Linda Greenhouse, and thank Robert E. Bishop, Matthew Butler, Ali Cooper-Ponte, Jessica Laird, Megan McGlynn, Brian McGrail, Sonja Yoerg, and the YLJ editors for their comments and support. I also thank Richard Gill, Amy Kapczynski, Meredith Pensak, and Allison Zieve for their guidance on the scientific and technical aspects of this Note.