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Is birth control threatened in a post-Roe America?

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“Destabilizing” and “outrageous” — these are the words President Biden used on Thursday to describe the Supreme Court’s decision to overturn the constitutional right to an abortion. He called on the Senate to temporarily change Senate filibuster rules to allow Congress to codify abortion protections and privacy rights that were previously protected under the 1973 landmark Roe v. Wade Supreme Court decision.

“I’ve warned about how this decision risks the broader right to privacy for everyone,” Biden said on June 24, the day SCOTUS delivered its decision on Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. Alarmed at the concurring opinion released the same day, Biden went on to note that “[Justice Clarence Thomas] explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception.”

“This decision of Dobbs should probably be a wake-up call about the fragility of the foundation on which these cases stand,” Miranda Yaver, assistant professor of political science at Wheaton College in Massachusetts, told Yahoo News.

Yaver 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 the United States after the reversal of Roe v. Wade.

Read their discussions below. (Some responses have been edited for length and clarity.)

Yahoo News: Why could access to birth control be threatened, now that the Supreme Court has overturned abortion rights?

Miranda Yaver: In Justice Thomas’s concurring opinion — this is not the opinion that garnered the support of five other justices, but it was quite notable, because Justice Thomas said, actually, we should be revisiting Griswold v. Connecticut.

Now, Griswold v. Connecticut was the big reproductive rights case of the 1960s. Basically, there were a number of states that had banned contraception, that had criminalized the distribution of contraception, and the instruction of the use of contraception. Connecticut was unusually conservative in this regard. To be clear, this was not a law that was really enforced, but nevertheless, it came to the Supreme Court.

What the Supreme Court said was — even though the word privacy does not appear in the Constitution — there are these zones of privacy: the privacy in association in the First Amendment; the privacy from having soldiers ordered in the home in the Third Amendment; the privacy from unwarranted search and seizure in the Fourth Amendment; the privacy in the Ninth Amendment, which is unenumerated rights. And so, essentially, this idea of penumbras.

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.

And so, 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 [including access to birth control], within the context of reproductive rights. Justice Thomas really highlights that this is not an unfounded concern among legal scholars.

Why is the definition of ‘the beginning of pregnancy’ a key part of the issue?

Yaver: Whether you are religiously oriented or whether you are more grounded in the science, it is going to have an impact on when you believe that life begins. Because while, for example, an intrauterine device prevents fertilization, it can also prevent implantation. And so there's a concern that there are certain forms of contraception that could prevent pregnancy after the moment of fertilization.

Dr. Nisha Verma: [The American College of Obstetrics and Gynecologists] defines when pregnancy begins as implantation. So there are multiple steps involved in creating a pregnancy and a pregnancy implanting in the uterus. 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. And in many cases, all of those steps don't go as planned, and the implementation cannot happen [in an ectopic pregnancy, for example]. But normally, we define pregnancy starting at implementation, which is also when the pregnancy starts growing.

Why is the timeline of how birth control and emergency contraceptives work key to this issue?

Verma: So most types of birth control and emergency contraception are working to prevent fertilization. So actually, 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 [otherwise known as Depo-Provera, a birth control injection that is administered every three months] 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. But 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. It's preventing fertilization. It actually is not going to work after fertilization occurs. 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.

Yaver: One of the big words that we're going to be hearing when we think about the threats to access to contraception is "abortifacient." This is a word that came up a lot in the landmark Supreme Court decision of Hobby Lobby [Burwell v. Hobby Lobby Stores, Inc. in 2014]. The Affordable Care Act has a contraception mandate. There were closely held corporations whose leadership was religious who said: "It violates our religious freedom principles to have contraceptive coverage for our employees, because we believe that life begins at fertilization. This is part of our religious belief, and we can't be forced to violate our religious freedom, because of the First Amendment." The Supreme Court sided with these closely held corporations with religiously affiliated leadership and essentially said that basically, the religious freedom protections extended to closely held corporations.

There has been some language surrounding both Plan B contraception and IUDs as being “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 “an abortion.”

Are emergency contraceptives or birth control being restricted in some states?

Yaver: What the Kansas City health system did [in Missouri on June 29] 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, they made very clear that they were not revisiting the case of Griswold v. Connecticut.

Although Justice Thomas in his concurrence indicated that he would like to do so, the majority made this distinction. However, 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.