Coming Abortion Fight Could Threaten Birth Control, Too

Protesters outside the Supreme Court in 2017.

Protesters outside the Supreme Court in 2017. Shutterstock

 

Connecting state and local government leaders

In discussions of the impact Supreme Court Justice Amy Coney Barrett could have on abortion rights, many overlook related issues, including the right to birth control that the court recognized in 1965. During her confirmation hearings, Barrett refused to say whether she felt that case was correctly decided.

Abortion opponents were among those most excited by the addition of Justice Amy Coney Barrett to the Supreme Court. And they had good reason to be.

As a law professor and circuit court judge, Barrett made it clear she is no fan of abortion rights. She is considered likely to vote not only to uphold restrictions on the procedure, but also, possibly, even to overturn the existing national right to abortion under the Supreme Court’s landmark rulings in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

Her first opportunity to weigh in could come soon. A Mississippi ban on abortions after 15 weeks — impermissible under existing court precedents — is awaiting review by the justices, who could decide as early as this week to take up the case.

That’s the headline. But many overlook other things that could flow from a new abortion jurisprudence — such as erasing the right to birth control that the court recognized in a 1965 case, Griswold v. Connecticut. During her confirmation hearings, Barrett specifically refused to say whether she felt Griswold was correctly decided.

That was a flashing red warning light for Nancy Northup, president of the Center for Reproductive Rights, a legal advocacy group that argues cases on abortion and contraception. Roe, said Northup, is part of a century of jurisprudence based on the idea that the Constitution protects the liberty of individuals. “It began with cases about how one educates one’s children, and includes same-sex marriage, contraception and abortion,” she said. “You can’t just take Roe out and not unravel the whole fabric.”

Yet from what Barrett has said and written about the Constitution, continued Northup, “it’s clear she doesn’t believe it protects the right to personal liberty.”

Abortion rights advocates worry that the court could go beyond overturning Roe and Casey. If those precedents are overturned, abortion decisions would return to the states. But the court could go a step further and recognize “fetal personhood,” the idea that a fetus is a person with full constitutional rights from the moment of fertilization. That would create a constitutional bar to abortion, among other things, meaning even the most liberal states could not allow the procedure.

Personhood amendments were on the ballot in several states about a decade ago. They were rejected by voters even in conservative states like Mississippi after opponents argued that recognizing life at fertilization would outlaw not just abortion, without exceptions, but also things like in vitro fertilization and many forms of contraception, including some birth control pills, “morning after” pills, and intrauterine devices (IUDs) that some think could cause very early abortions by preventing a fertilized egg from implanting in the uterus. (More recent scientific evidence suggests nearly all those methods actually prevent ovulation, not  implantation.)

But an abortion law passed in Georgia in 2019 not only includes a ban on abortion at the point a heartbeat can be detected — often before a woman is aware she is pregnant — but also has a fetal personhood provision. Georgia is appealing a federal district court ruling that struck down the law as a violation of Roe.

Proponents of these personhood provisions are cautiously optimistic. “It looks like there will be a court more friendly to a challenge to Roe,” said Les Riley, interim president of the Personhood Alliance, the group pushing the concept. “But to some extent we’ve been down this road before.”

Previous courts since the early 1990s that were thought poised to overturn Roe did not.

And even if the court were to uphold a law like the Mississippi ban it is considering now, he said, “all that’s saying is they agree that states can regulate or ban abortion at 15 weeks. What we want to do is have the factual reality that life begins at conception recognized in law.”

Mary Ziegler, a law professor at Florida State University who has written two books on the abortion battle, said the court wouldn’t have to recognize fetal personhood to threaten many forms of contraception.

States could effectively ban contraception by arguing that some contraceptives act as abortifacients, she said. The court has already opened the door to this argument. In the 2014 Hobby Lobby case, it allowed some companies to decline to offer birth control coverage otherwise required by the Affordable Care Act to their employees. The owners of the companies that brought the suit said they believe some contraceptives are a form of abortion, and the court said the requirement violated their religious freedom. The court used a similar reasoning in a 2020 case exempting the Roman Catholic order Little Sisters of the Poor from even having to sign a paper that would officially exempt them from the ACA contraceptive mandate.

Medical groups and the federal government don’t consider any form of contraception approved by the Food and Drug Administration an abortion equivalent, because the standard medical definition of the start of pregnancy is when a fertilized egg implants in the uterus, not when sperm and egg first unite. Yet the court has not always followed science on the issue.

Still, Ziegler said, “personhood has always been the endgame” for abortion foes, not simply overturning Roe, which would let each state decide whether to outlaw abortion. “Allowing states to leave abortion legal has never been the endgame,” she said.

Interestingly, however, Riley of the Personhood Alliance said that while he hopes his side will win eventually, he is not necessarily hoping that win will come from the Supreme Court.

“We think the strategy has been misguided for years,” he said. “Right now, five justices can overturn anything. That’s not the system of government our founders had in mind.”

Rather, he said, his organization is working more at the state and local level “to lay the groundwork of people’s hearts being changed.”

Julie Rovner is the chief Washington correspondent for KHN.

FEATURED CASE STUDIES
Powered By The Atlas
Improved Water Quality and More Field Time Due to a 97% Reduction in Office Admin Work
Marin County, CA, USA
Integrated city systems, unified data, & automation drive 316% increase in field efficiency
Seattle, WA, USA
Orlando Protects Citizens During Heavy Rain Events by Optimizing Water Data Intelligence
Orlando, FL, USA

NEXT STORY: Seniors Form COVID Pods to Ward Off Isolation This Winter

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.