On June 24, Supreme Court Justice Clarence Thomas released his concurring opinion overturning Roe v. Wade, which raised additional concerns about a person’s right to privacy within the context of reproductive rights. Miranda Yaver, assistant professor of political science at Wheaton College in Massachusetts, and Dr. Nisha Verma, Darney-Landy fellow at the American College of Obstetricians and Gynecologists, spoke to Yahoo News about how the threat to a person’s right to privacy could also affect access to emergency contraception and birth control in a post-Roe America.
MIRANDA YAVER: With the Supreme Court not only striking down Roe v. Wade and Planned Parenthood v. Casey, which had really been the controlling abortion precedent since 1992, there is a real concern about the vulnerability of the broader privacy framework within the context of reproductive rights.
JOE BIDEN: I've warned about how this decision risks the broader right to privacy for everyone. Justice Thomas said as much today. He explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception.
MIRANDA YAVER: Justice Thomas said, actually, we should be revisiting Griswold v. Connecticut. Now, Griswold v. Connecticut was really the big reproductive rights case of the 1960s. To give you some history, there were a number of states that had banned contraception, that had criminalized the distribution of contraception, the instruction, the use of contraception. Connecticut was unusually conservative in this regard.
What the Supreme Court said was even though the word "privacy" does not appear in the Constitution, there are these zones of privacy. And it was with this idea of reproductive privacy in mind that the Supreme Court then extended in Eisenstadt v. Baird in 1972, the contraception protections to unmarried couples, and then in Roe v. Wade in 1973, asserting that this right to privacy extended to the right to terminate a pregnancy, at least within certain parameters. So these are really big precedents that a lot of legal scholars, myself included, have been concerned could be on the chopping block with the Supreme Court.
Whether you are religiously oriented, whether you are more grounded in the science is going to have an impact on when you believe that this life begins. Because, well, for example, an intrauterine device typically prevents fertilization, but it can also prevent implantation. And so there's a concern that there are certain forms of contraception that could prevent pregnancy after the fertilization.
NISHA VERMA: We define when pregnancy begins as implantation. So the sperm has to get to the egg. The egg has to be released. There has to be fertilization. That fertilized egg and sperm have to travel to the uterus and implant into the uterus. In many cases, all of those steps don't go as planned, and the implementation cannot happen. But normally, we define pregnancy starting at implementation, which is also when the pregnancy starts growing.
Most types of birth control and emergency contraception are working to prevent fertilization. Essentially, that's how all birth control and emergency contraception are acting. They might do that in different ways. So we have some methods, like the combined oral contraceptive pill and the Depo shot, that work to prevent ovulation. We have other methods like the hormonal IUD that thicken the cervical mucus and thin the lining of the uterus so that the sperm can't get to the egg. So all of those methods are preventing the release of the egg and preventing fertilization from happening.
Similarly, emergency contraception is acting to prevent ovulation so that the egg can't be released and the sperm can't meet up with that egg. Emergency contraception is preventing a pregnancy from occurring, whereas the abortion pill mifepristone stops a pregnancy that already exists from growing. And so I just want to be very clear that those are different.
MIRANDA YAVER: One of the big words that we're going to be hearing when we think about threats to access to contraception-- the word is "abortifacient." There has been some language surrounding both Plan B contraception and IUDs as being, quote unquote, abortifacients. Now, they are not abortifacients, but this is the language that some people have used to characterize them. Because in addition to preventing fertilization, they can also prevent implantation.
And depending on where you define life as beginning-- does it begin when scientists would say it begins, which is at the stage of implantation in the uterus, or does it begin at the moment of fertilization? And if you believe the latter, that life begins at fertilization, then anything that would terminate it could be construed by some as being, quote unquote, "an abortion." This is really going to be the first line of attack within the realm of contraceptive coverage. It's going to be the forms of contraception that are characterized as abortifacients.
In terms of states that have already made the move to ban emergency contraception and IUDs, what the Kansas City Health System did was they announced that their hospital would no longer be giving rape victims emergency contraception, also known as Plan B. And what they expressed was concern that despite the Dobbs decision not technically addressing contraception, there's this concern that contraception, or at least particular forms of contraception, could get ensnared in this abortion debate.
And what the health system said was that the abortion law in Missouri, which bans abortion even in cases of rape or incest, is sufficiently vague that they basically were concerned that health care providers would be liable for criminal prosecution, and they wanted to safeguard their providers from that. But we'd be hard-pressed to say that this is going to be the last of it.