Some contraceptives could be banned if Roe v. Wade is canceled, legal experts warn

With trigger laws in 13 states set to go into effect if the Supreme Court overturns Roe v. Wade says a new era of restricted access to birth control could unfold in states that narrowly define the start of life, legal experts say.

“This is the new Jane Crow we’re about to step into,” said Michele Goodwin, a law professor at the University of California, Irvine and author of “Policing the Womb: Invisible Women and the Criminalization of motherhood”. ”

“It’s no longer an assumption – the reality is already there,” Goodwin said, pointing to states that are considering legislation to limit the types of birth control residents can acquire, such as Louisiana and Idaho. .

A protester dressed as a packet of birth control pills during the Women’s March in Washington on January 18, 2020.Sarah Silbiger/Bloomberg via Getty Images File

Some conservative lawmakers wasted no time in signaling that they were considering restricting or banning certain types of emergency contraception, such as Plan B and other morning-after pills that can be used within 72 hours of sexual intercourse to prevent pregnancy.

A top Republican Idaho state lawmaker suggested last week that he would be open to holding hearings on the ban on emergency contraception, and Sen. Marsha Blackburn, R-Tenn., recently denounced Griswold v. Connecticut, the 1965 case that expanded access to contraception. to unmarried people.

In Louisiana, the law would classify abortion as homicide and define “personhood” as beginning from the time of fertilization. Birth control methods like Plan B and certain types of intrauterine devices, or IUDs, could be restricted under the bill, said Cathren Cohen, a law and policy specialist at the UCLA Law Center.

“Anything that would prevent a fertilized egg from developing into a pregnancy and giving birth to a baby could be considered homicide,” she said. “If you define a pregnancy and you define a person as including only that fertilized egg, then technically you are legislating that an IUD can cause an abortion.”

Judge Samuel Alito’s draft opinion has sparked a tsunami of questions about whether his language could be used to target more than abortion and leave some sort of legal vacuum.

In his 98-page argument, Alito wrote that Roe v. Wade should be overturned because the Constitution “makes no reference to abortion, and no such right is impliedly protected by any constitutional amendment, including the one upon which Roe’s defenders…now principally rely – the clause due process of the Fourteenth Amendment.

Alito went on to differentiate between abortion and other 14th Amendment rights, writing that the procedure is ‘fundamentally different…because it destroys…what the law before us describes as a ‘ unborn human being”.

How states define an “unborn” human being will determine whether they restrict access to contraception, particularly birth control that prevents implantation of fertilized eggs, said Jessica Arons, senior policy adviser at the American Civil Liberties Union.

“Without a federal law dictating one outcome or the other, it will be a state-by-state matter, but that’s not how basic rights work,” she said. “People are about to experience a real disconnect between what they understood as bodily autonomy.”

For conservatives seeking to limit more than abortion, Alito’s opinion would create a blueprint for the Supreme Court to give states the power to regulate a number of individual rights guaranteed by past interpretations of the 14th Amendment, including including access to contraception.

“If this opinion really becomes law, you could see a lot of abortion-related rights in jeopardy,” said Maxwell Mak, associate professor of political science at the John Jay College of Criminal Justice in New York. “The way the draft advice is written opens the door to many unanswered questions that would allow the Conservatives to really target contraception.”

Image: Michelle Peterson
Michelle Peterson of Silver Spring, Md. protests outside the Supreme Court on Tuesday, which is lined with anti-climb fencing.Jacquelyn Martin/AP

“With Alito narrowing and eliminating abortion as something that is guaranteed by the 14th Amendment, everything else becomes less safe,” he added. “It all comes down to: ‘What is explicitly written in the Constitution? What is fundamental in the concept of liberty?'”

If the Constitution does not mention abortion, it also does not mention the right to privacy. The Supreme Court has codified the concept over the years through various decisions, including Roe v. Wade. The idea has also been applied to less socially adversarial circumstances, including the Fourth Amendment, which prevents police from searching people and their property without probable cause.

But pregnancy termination remains deeply culturally and legally polarizing, leading to what experts have dubbed “abortion exceptionalism.” The idea is that abortion is more heavily regulated than other medical procedures because it involves a moral issue, leading the courts to weigh more vigorously on something that would otherwise be left to medical professionals.

“You don’t see other forms of health care where people who don’t have medical expertise make specific rules about how you should provide health care,” UCLA’s Cohen said.

“We treat abortion differently.”

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