Plan B and spirals already in the crosshairs
Despite the insistence of both Judge Samuel Alito and a flotilla of right-wing publications that the draft opinion repealing abortion laws will not touch any of its privacy-based cousins, Republican lawmakers are already turning to contraception.
In particular, the Overton window appears to be shifting to include “debates” about intrauterine devices (IUDs) and popular emergency contraception like Plan B.
While these emerging efforts to attack contraception are new, anti-abortion antagonism to them is not new. Anti-abortion groups have long attempted to confuse these birth control methods with abortion, particularly as was made clear during the campaign against mandatory contraception through the Affordable Care Act.
This merging contradicts the science and occasionally the political interests of the movement. Some groups within the movement have situationally clouded their stance on contraception so as not to alienate potential supporters.
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“Now it’s just loud,” Robin Marty, communications director for the West Alabama Women’s Center and an author who has written extensively on abortion, told TPM. “And it’s loud because they think they have a Supreme Court that allows them to do whatever they want. I don’t think it’s alarming to say that access to birth control will become difficult, if not impossible, in many states.”
Hearings on “complications” of Plan B were being considered in Idaho
Idaho House State Affairs Committee Chairman Brent Crane (R) said in an interview with Idaho Public Television that he will hold hearings to ban emergency contraception and the two drugs known collectively as the “abortion pill.”
“IUDs, I’m not sure yet where I would be on this particular issue,” he said.
A day later, he did some cleanup and said he supported IUDs, but insisted he was still interested in exploring Plan B and the abortion pill.
He vaguely hinted at “complications” from Plan B-like pills and “maternal health concerns” from the abortion drugs.
Common side effects of Plan B are mild: The Mayo Clinic lists nausea and cramps as among them. The “abortion pill” — usually, except in states that have arbitrarily made mifepristone difficult to access, mifepristone and misoprostol together — is extremely safe.
In general, a woman is 14 times more likely to die during or after childbirth than from abortion complications.
“The right is still totally obsessed with the idea that emergency contraception in general is an abortifacient,” Marty said. “Although it has been repeatedly proven that it does not interfere with a developing pregnancy or stop implantation.”
A Louisiana bill calling for a murder-for-abortion charge could potentially criminalize emergency contraception, IUDs and in vitro fertilization
The Louisiana House Committee for the Administration of Criminal Justice last week pushed ahead with legislation claiming that life begins at fertilization and allowing prosecutors to charge anyone charged with murder learns or provides for an abortion. So much for not chasing after the women!
Like many abortion restrictions, these could hurt women beyond those who want to end an unwanted pregnancy.
“If the state invariably defines humanity as beginning at conception or fertilization, it could use the same argument to say that Plan B or IUDs destroy a person to the extent that they prevent an embryo from implanting,” Greer said Donley, assistant professor at the University of Pittsburgh Law School.
In most cases, IUDs prevent fertilization. Plan B has also been shown not to interfere with implantation, although an outdated Food and Drug Administration label has provided fodder for opposition to the anti-abortion movement.
There are other radical parts of this bill, including a provision that will null and void any federal statute or court ruling protecting abortion rights, and a threat that any state judge who overturns the bill will be indicted.
Legislators are pursuing old goals with renewed vigour
This isn’t the first time in recent history that Republicans have attempted to ban or restrict access to contraception.
Missouri Republicans would have asked for nearly $722 billion in 2021 budget cuts, according to the governor’s count, as they attempted to limit when the state pays for contraceptives by classifying them as pro-choice. Changing an annual bill would have barred Medicaid from funding Plan B and the like, and spiraling, which could have jeopardized the state’s entire Medicaid program.
“If an FDA-approved device kills a human life, that’s an abortion,” said the amendment’s author, Senator Paul Wieland (R). “I don’t know why the rest of the world doesn’t see it that way.”
The change was eventually scrapped in an emergency special session days before the cuts would have gone into effect.
The Supreme Court has a murky recent history of contraception
For those still seeking reassurance that the Supreme Court will protect access to contraception, recent decisions, even by its more liberal pre-Trump iterations, are red flags instead.
In Burwell vs. Hobby Lobby StoresIn 2014, the Court ruled that privately owned, for-profit companies can refuse birth control to employees who consider birth control to be an abortion.
“The owners of the companies have religious objections to abortion, and according to their religious beliefs, the four contraceptive methods in question are abortifacients,” Alito wrote for the majority. The contraceptives in question were two types of morning-after pills and two IUDs.
The court again restricted access to birth control under the Affordable Care Act in 2020.
Some experts see worrying evidence in an even earlier case Gonzales versus Carhartwhere the Court ruled that states have wide discretion to pass legislation in areas where there is “medical and scientific uncertainty”.
“The court left the decision to the legislature,” Donley said. “So if states believe Plan B is abortion and they can find a minority of anti-abortion OBGYNs who agree, then I suspect the Supreme Court will allow them to ban it as an abortion.” The court would not have to challenge its birth control precedent.”
What the conservative judges said about contraception
Judge Clarence Thomas also worked in birth control as part of a 2019 screed equating abortion with racial neurogenics.
“The foundations for legalizing abortion in America were laid during the birth control movement of the early 20th century,” he wrote. “This movement developed alongside the American eugenics movement. And, significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause.”
Alito, in his Burwell vs. Hobby Lobby Opinion, and Justice Brett Kavanaugh both uncritically parroted false claims by religious groups confusing contraception and abortion during their confirmation hearings.
Judge John Roberts aligned himself with the Conservative majority Gonzales versus Carhart and recent decisions allowing employers to slash contraception, though he said during his confirmation hearing that he “agrees with that.” Griswold The court’s conclusion that the privacy of marriage also extends to contraception and its availability.” However, Thomas and Alito also said they agree Griswold during their confirmation negotiations.
Judge Neil Gorsuch sided with Hobby Lobby and the Little Sisters of the Poor in their push to remove birth control from coverage while he was still on the 10th Circuit Court of Appeals.
“We all face the problem of complicity,” Gorsuch wrote in a unanimous statement in the Hobby Lobby case. “We all have to decide for ourselves whether and to what extent we are willing to accept the misconduct of others. For some, religion provides an essential source of guidance both on what constitutes wrongdoing and on the moral guilt of those who help others to commit wrongdoing.”
Judge Amy Coney Barrett dodged questions about contraception during her hearing, saying only that it would be “unthinkable” for lawmakers to pass legislation repealing the right to use or buy contraception.
“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” she said.