07/19/2024

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If the Supreme Court strikes down Roe v. Wade, 13 state trigger laws will take effect and a new era of restrictive birth control could play out in states that strictly define when life begins, legal experts say.

“This is the new Jane Crow we’re about to enter,” said Michele Goodwin, chancellor’s professor of law at the University of California, Irvine, and author of the book “Regulating the Womb: The Criminalization of Invisible Women and Mothers. “

“It’s no longer hypothetical – the reality is already here,” Goodwin said, referring to states such as Louisiana and Idaho that are considering legislation to limit what birth control residents can access.


Some conservative lawmakers immediately said they are considering limiting or banning certain types of emergency contraception, such as Plan B and other morning-after pills that can be used within 72 hours of intercourse to prevent pregnancy.

A leading Republican state lawmaker in Idaho said last week he would be open to holding hearings on a ban on emergency contraception, and Tennessee Republican Sen. Marsha Blackburn recently denounced Griswold v. Connecticut, the 1965 case that expanded contraception for unmarried people.

In Louisiana, legislation classifies abortion as a homicide and defines “personhood” as beginning at the moment of fertilization. Cathren Cohen, a law and policy scholar at the UCLA Law Center, said the bill could restrict Plan B and certain types of contraceptive methods such as IUDs or IUDs.

“Anything that prevents a fertilized egg from becoming pregnant and giving birth to a baby could be considered a homicide,” she said. “If you define pregnancy and you define a person to include only this fertilized egg, then technically you’re legislating that IUDs can cause abortion.”

Justice Samuel Alito’s draft opinion raises a number of questions about whether his language can be used to target targets other than abortion and leave a kind of legal vacuum.

In his 98-page argument, Alito wrote that Roe v. Wade should be struck down because the Constitution “says nothing about abortion, and no constitutional amendment implicitly protects such a right, including Roe’s defenders …… who now rely primarily on – -the Due Process Clause of the Fourteenth Amendment.”

Alito goes on to distinguish between abortion and other rights guaranteed by the 14th Amendment, writing that the procedure is “fundamentally different …… because it undermines what …… the law before us describes as ‘the the unborn.'”

Jessica Arons, senior policy counsel for the American Civil Liberties Union, said how states define the “unborn” will determine whether they will restrict contraception, particularly birth control to prevent fertilized eggs from being laid.

“In the absence of a federal law mandating one outcome or the other, it’s going to be a state-to-state issue, but that’s not how fundamental rights work,” she said. “People are about to experience a real disconnect between what they understand to be bodily autonomy.”

For conservatives who want to do more than just restrict abortion, Alito’s opinion would create a blueprint for the Supreme Court to give states the power to regulate some of the individual rights that past interpretations of the 14th Amendment have ensured, including access to contraception.

“If this opinion does become law, you could see a lot of abortion-related rights in jeopardy,” said Max Wehmeyer, associate professor of political science at the John Jay College of Criminal Justice in New York. “The way the draft opinion is written opens the door to a lot of unanswered questions that would allow conservatives to really take aim at contraception.”


“As Alito shrinks and eliminates abortion as something guaranteed by the 14th Amendment, everything else becomes less safe,” he added. “Everything can be traced back to: ‘What is explicitly written in the Constitution? What is the basis of the concept of liberty?'”

While the Constitution makes no mention of abortion, it also makes no mention of the right to privacy. Over the years, the Supreme Court has codified the concept through various decisions, including Roe v. Wade. The idea also applies in less socially divisive situations, including the Fourth Amendment, which prohibits police from searching people and their property without probable cause. But termination of pregnancy remains culturally and legally polarized, leading experts to call it “abortion exceptionalism. The idea is that abortion is more heavily regulated than other medical procedures because it carries with it a moral issue, which has led courts to weigh more aggressively what should be left to medical professionals.

“You don’t see other forms of health care where people without medical expertise would make specific health care rules,” said UCLA’s Cohen.

“We treat abortion differently.”

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