ItIn the aftermath of an unpublished Supreme Court opinion, which was deemed invalid by it Roe v Wade,A handful of Republican legislators from the states and regions supported proposals to restrict access to contraception.
Arkansas and Louisiana Republican lawmakers supported legislation that would immediately ban emergency contraception devices such as IUDs (cupper intrauterine device) or Plan B. This is if the Supreme Court does not overturn. Roe. Conservative candidates and legislators in Idaho and Michigan expressed an interest in plans that directly restricted access to emergency contraceptives.
These proposals are based on an old argument: Anti-abortion groups argue that contraception like this is abortion. It prevents unprotected sexual activity from occurring and it is considered to be abortion. What’s new is that these proposals might, suddenly, have legal traction.
“It’s absolutely clear that the Supreme Court’s decision—if it does emerge along the lines of the leaked opinion by Justice Alito—would…open the door to restrictions on birth control, same sex marriage, sexual intimacy, and other forms of intimate personal decision-making,” says Laurence Tribe, professor of constitutional law at Harvard University tells TIME.
The draft opinion, authored by Justice 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 this Nation’s history and tradition.” According to Tribe and other legal experts, such language leaves wide open the possibility that the Supreme Court would allow state laws restricting access to birth control to stand. The morning-after pill and copper IUDs are not arguably deeply rooted in American History.
Alito’s language doesn’t only leave the door open, Tribe says; it “basically shove states that have that inclination right through the door.”
In jeopardy may be the Constitution’s right to have birth control.
In June, the Supreme Court will issue its final decision. If justices overturn, Roe in its entirety, the legal landscape surrounding abortion and other reproductive rights will explode overnight, says Rachel Rebouché, interim dean of the Temple University Beasley School of Law and expert on public health law. “The arguments that will erupt, and the litigation, and the debate around definitions like what is and what is not an abortion…the landscape we’re going to confront when Roe is overturned,” she says, “is going to be incredibly complex.”
In Louisiana, state legislators have moved forward on a bill that would classify all abortion as a homicide, and would put in writing that “personhood” begins at fertilization. This definition would raise questions about whether the law allows emergency contraception. On Thursday, Louisiana Gov. John Bel Edwards, a pro-life Democrat, said he opposes the bill, and called it “unconstitutional” in a public statement.
Arkansas’ trigger law would have most abortions banned in Arkansas. Roe is overturned, could have a similar effect on access to emergency contraceptives, the state’s Democratic Party warns.
One-Step Plan B Birth Control at a CVS Pharmacy Boston MA.
Lindsey Nicholson—UCG/Universal Images Group/Getty Images
Science of emergency contraception complicates the legal argument. The morning-after pill and copper IUDs do not end a pregnancy once it has been conceived. Morning-after pills prevent the egg from becoming fertilized and make the sperm more likely to fertilize the egg. This is according to the National Institutes of Health and American College of Obstetricians and Gynologists, as well as other top medical institutions.
Learn MoreThe availability of long-term birth control is difficult. Advocates Fear It Will Get Worse
Some legislators who support contraception restrictions have been rebuffed. In Idaho, State Senator Brent Crane, who is also the chairman of the House State Affairs Committee, told Idaho Reports that he’d be open to hearings on the banning of abortion pills delivered by mail, IUDs, and Plan B. “Plan B—I probably would hear that legislation,” he said on May 6. “IUDs, I’m not for certain yet on where I would be on that particular issue.” The following week, Crane clarified that he supports contraceptives like IUDs, but would hold hearings on pills that induce abortion.
Brent Crane (Republican state Representative) addresses the House State Affairs Committee Friday, February 5, 2021 in Boise.
On May 8, Mississippi’s Governor Tate Reeves, a Republican, dodged questions from CNN’s Jake Tapper and MSNBC’s Chuck Todd over whether he’d consider bill banning contraceptives, and told Tapper that the state isn’t currently focused on it.
Some Republicans also have been publicly criticised by others Griswold v. ConnecticutA landmark 1965 Supreme Court ruling that allowed couples to have access to contraceptives in privacy.
In Arizona, Blake Masters, a Republican running for Arizona Senate, reportedly pledged on his website to only vote for judges “who understand that RoeAnd GriswoldAnd 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 on Twitter. “I am pro-life. And of course I don’t think contraceptives should be outlawed,” he said, adding, “In Griswold, the justices wholesale *made up a constitutional right* to achieve a political outcome. Judges making laws is something I oppose. It’s the job of the legislative branch to create laws, not the courts.”
The questioning of this is GriswoldIn recent weeks, the case was brought up again. Prior to the confirmation hearings of Judge Ketanji Jackson Brown Jackson, Senator Marsha Blackburn from Tennessee published a video statement in which she called the Supreme Court’s decision in Griswold “constitutionally unsound.”
How does one know when it all begins?
The idea at the center of debates about emergency contraception is so-called “fetal personhood,” a phrase embraced by the anti-abortion movement that defines a fetus as a person with constitutional rights. In high-profile lawsuits such as the one involving the case of Fetal Personhood, it has been repeatedly brought up. Burwell v. Hobby Lobby In 2014, the Supreme Court ruled Hobby Lobby and other businesses did not need to provide coverage for religious reasons birth control.
Amelia Bonow, Erin Jorgensen and Alana Emmondson demonstrate in front the U.S. Supreme Court, Washington on December 1, 2021.
The controversial issue of privacy, which first appeared in 1920s America’s Constitution, is also being debated. 1973 was the year that 7-2 of the Supreme Court ruled in favor RoeThe 14th Amendment establishing privacy rights, was interpreted by the committee to determine that women can seek abortions. H.W. states that Conservatives including Justices Antonin and Scalia as well as Clarence Thomas had long opposed to this interpretation. Perry is a professor of constitutional law at Texas at Austin. “The debate has become, should the court defend rights of privacy that are not specifically mentioned in the constitution?” Perry says.
Continue reading: Why It’s So Hard to the Get Birth Control You Want Covered by Insurance
Other Supreme Court decisions, including Griswold, Loving v Virginia, Interracial marriage was banned in 1967 by the Supreme Court. Obergefell v Hodges, Melissa Murray, a professor at New York University, said that the same reasons were used to decide which states legalized same-sex marriage in 2015.
The leaked draft opinion, written by Justice Samuel Alito, says explicitly that the court’s ruling on RoeThis is a strictly abortion-related decision and shouldn’t be used to change precedents in any other instances. But many legal scholars say such an assertion is about as valuable as the paper it’s written on.
“I think [Justice Alito] knows good and well that that’s disingenuous,” says Murray, whose work has focused on constitutional law and reproductive rights. “But as you can see, [conservatives are] lining up against these other rights.”
Tribe notes that Alito’s reassurance flies in the face of how the judicial system functions. “Courts don’t decide a case and say it’s like a one-way railway ticket good for this trip only,” Tribe says. “They lay down a principle and that principle is then applied in future controversies.”
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