Birth control could be at risk if Roe v Wade is overthrown

Iin the wake of a leaked Supreme Court draft opinion overturning Roe x Wade, a handful of state and local Republican politicians appeared to support proposals that would restrict access to birth control.

In Arkansas and Louisiana, some Republican lawmakers announced their support for bills that would effectively result in immediate bans on certain emergency contraceptives, including copper intrauterine devices (IUDs) or Plan B, the so-called morning-after pill, if the Supreme Court really overturn roe. In Idaho and Michigan, conservative lawmakers and candidates have expressed interest in proposals that would directly restrict access to emergency contraceptives.

The reasoning behind such proposals is ancient: anti-abortion groups have long argued that such contraception is tantamount to abortion in that it prevents pregnancy after unprotected sex. The novelty is that these proposals may suddenly have legal force.

“It is absolutely clear that the Supreme Court’s decision – if it comes along the lines of Judge Alito’s opinion – would open the door to restrictions on birth control, same-sex marriage, sexual intimacy and other forms of intimate personal decision-making. , Laurence Tribe, a professor of constitutional law at Harvard University, tells TIME.

The draft opinion, authored by Minister Samuel Alito, says that any right not mentioned in the Constitution, but implicitly protected by the Due Process Clause of the 14th Amendment, must be “deeply rooted in the history and tradition of this Nation”. According to Tribe and other legal experts, this language leaves open the possibility that the Supreme Court will allow state laws that restrict access to birth control to be valid. Access to copper IUDs and the morning after pill are not deeply rooted in American history.

Alito’s language doesn’t just leave the door open, says Tribe; it “basically pushes states that have that inclination out the door.”

Constitutional right to birth control may be at risk

The Supreme Court is expected to issue a final decision in June. If the judges really take down roe in its entirety, the legal landscape around abortion and other reproductive rights will explode overnight, says Rachel Rebouché, interim dean at Temple University Beasley School of Law and an expert in public health law. “The arguments that will arise, and the litigation, and the debate around definitions like what is and what is not an abortion… roe toppled,” she says, “is going to be incredibly complex.”

In Louisiana, state lawmakers have advanced a bill that would classify all abortion as homicide and put in writing that “personality” begins with fertilization. That definition would likely raise legal challenges over whether emergency contraception violates the law. On Thursday, Louisiana Governor John Bel Edwards, a pro-life Democrat, said he opposes the bill and called it “unconstitutional” in a public statement.

Arkansas’ so-called trigger law, which would ban most abortions in the state, roe is overturned, it could have a similar effect on access to emergency contraceptives, warns the state’s Democratic Party.

Legal arguments are complicated by the science of emergency contraception. The copper IUD and the morning-after pill do not terminate a pregnancy after conception; instead, morning-after pills temporarily prevent ovulation, thus preventing an egg from being fertilized, and copper IUDs make sperm less likely to fertilize an egg, according to the National Institutes of Health and the American College of Obstetricians and Gynecologists, among other important doctors. institutions.

See More information: Lasting birth control is hard enough to come by. Advocates worry it can only get worse

Some lawmakers who expressed support for restrictions on contraception have faced backlash. In Idaho, State Senator Brent Crane, who is also chairman of the House State Affairs Committee, told Idaho Reports that he would be open to hearings on the ban on mail-order abortion pills, IUDs, and Plan B. “Plan B – I would probably hear this legislation,” he said on May 6. “IUDs, I’m still not sure where I would be on this particular issue.” The following week, Crane clarified that he supports contraceptives like IUDs, but would hold hearings on abortion-inducing pills.

On May 8, Mississippi Governor Tate Reeves, a Republican, evaded questions from CNN’s Jake Tapper and MSNBC’s Chuck Todd about whether he would consider banning contraceptives and told Tapper that the state is not focused. in that.

Some Republicans also publicly criticized Griswold v. Connecticuta landmark 1965 Supreme Court decision that established that the right to privacy allowed couples access to contraceptives.

In Arizona, Blake Masters, a Republican candidate for the Arizona Senate, reportedly promised on his website to vote only for judges “who understand that roe and Griswold and Casey were wrongly decided and that there is no constitutional right to abortion,” according to the Arizona Mirror.

The statement no longer exists on Master’s campaign website, and he has since threatened to sue the Mirror because the story “wildly misrepresents my views,” he wrote in twitter. “I’m pro-life. And of course I don’t think contraceptives should be banned,” he said, adding: “In Griswold, wholesale judges *invented a constitutional right* to achieve a political outcome. I am against judges making the law. It is the job of the legislature to make laws, not of the courts.”

This questioning of Griswold if it has appeared before in the last few weeks. Ahead of Judge Ketanji Brown Jackson’s confirmation hearings, Senator Marsha Blackburn of Tennessee released a video statement in which she invoked the Supreme Court’s decision in Griswold “constitutionally unfounded”.

The question of when life begins

The idea at the heart of debates over emergency contraception is the so-called “fetal personality”, a phrase adopted by the anti-abortion movement that defines the fetus as a person with constitutional rights. The idea of ​​the fetal personality has surfaced repeatedly in high-profile court cases, including Burwell v. Hobby Lobby, in which the Supreme Court ruled in 2014 that Hobby Lobby and other employers were not required to provide insurance coverage for birth control on religious grounds.

The arguments also surround the controversial question of whether the Constitution implicitly grants Americans the right to privacy that first emerged in the 1920s. In 1973, when the Supreme Court ruled 7-2 in favor of roe, ruled that women have the right to seek abortions under an interpretation of the 14th amendment that establishes a constitutional right to privacy. Conservatives, including Justices Alito, Antonin Scalia and Clarence Thomas, have long opposed this interpretation, says HW Perry, a professor of constitutional law and political science at the University of Texas at Austin. “The debate has become, should the court uphold privacy rights that are not specifically mentioned in the constitution?” says Perry.

See More information: Why is it so hard to get the birth control you want covered by insurance?

Other Supreme Court decisions, including Griswold, Loving vs Virginia, which overturned the ban on interracial marriage in 1967, and Obergefell vs Hodges, which legalized same-sex marriage in 2015, were decided on those same grounds, says Melissa Murray, a law professor at New York University.

The leaked draft opinion, written by minister Samuel Alito, explicitly says that the court’s decision on roe it is strictly about abortion and should not be interpreted to impact precedent set in other cases. But many jurists say that such a statement is as valuable as the paper it is written on.

“I think [Justice Alito] knows very well that this is false,” says Murray, whose work has focused on constitutional law and reproductive rights. “But, as you can see, [conservatives are] lining up against those other rights.”

Tribe notes that Alito’s safety runs counter to the workings of the justice system. “Courts don’t decide a case and say it’s like a one-way train ticket that’s only valid for this trip,” says Tribe. “They establish a principle and that principle is then applied in future controversies.”

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write to Jasmine Aguilera at [email protected]

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