Members Only | July 6, 2022 | Reading Time: 2 minutes
Even if Griswold stands, states are likely to ban contraception
How? By saying it’s the same as abortion.
The demise of Roe threatens access to emergency contraception, IUDs and even the birth-control pill. Access is threatened even if Griswold v. Connecticut, which safeguards our right to birth control, remains the law.
By refusing to recognize a right to abortion at any stage of a pregnancy, the rightwing supermajority on the Supreme Court has created a free-for-all.
State legislators can disregard medical consensus and redefine pregnancy and abortion according to whim. Effective female-controlled methods of birth control could be banned even without overturning Griswold.
State legislators will probably get away with their capricious redefining of key medical concepts like “pregnancy” and “abortion,” because the Supreme Court usually defers to their views on socially contested concepts.
Five states already prohibit abortion from conception onward. These states have decreed that pregnancy begins at the moment of fertilization.
However dramatic a sperm’s entrance may be, fertilization does not guarantee a pregnancy. Medically speaking, pregnancy begins at implantation. Half of fertilized eggs fail without birth control. That means unprotected sex dooms more fertilized eggs than any birth control does
In any case, preventing a fertilized egg from implanting is contraception, not abortion. Even the notorious Hyde Amendment allows the federal government to fund contraceptives that prevent implantation.
Nevertheless, state legislators will probably get away with their capricious redefining of key medical concepts like “pregnancy” and “abortion,” because the Supreme Court usually defers to their views on socially contested concepts.
A major health care system in Missouri, which now bans abortion at all stages, briefly stopped providing emergency contraception after Dobbs. It feared its staff would be prosecuted under the state’s abortion ban.
It was a reasonable concern. The state’s governor dodged questions about whether the new law would apply to contraception. The network only went back to providing Plan B after Missouri’s attorney general confirmed that the law does not apply to emergency contraception.
Emergency contraception, also known as Plan B, works the same way as regular birth control pills, mainly by preventing ovulation. Experts used to think that IUDs worked primarily by preventing fertilized eggs from implanting, but we now know that the vast majority of pregnancies prevented by IUDs are headed off before fertilization.
Anti-choicers have been fighting to redefine contraceptives as abortion for years. They rallied behind pharmacists who put their religious beliefs ahead of their obligations when refusing to dispense Plan B. In 2014, the Supreme Court ruled that companies can deny employees comprehensive health care insurance based on their specious belief that birth control is abortion.
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Last year, a group of Republican state legislators in Missouri tried unsuccessfully to stop the state’s Medicaid program from covering contraception methods that they falsely claim cause abortions.
“The bottom line is there is only one time something definitively happens and that’s the moment of conception,” Missouri state Sen. Paul Wieland said at the time, expressing a typically sperm-centric view of the situation, “Once that happens, anything that happens should not be state funded.”
Republican legislators in Idaho said they will consider using their supermajority to ban emergency contraception in the next session.
So never mind about Griswold.
The right to contraception is under threat even if it stands.
Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.
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