Overturning Roe Could Lead to Restrictions on Birth Control

Pro-choice activists march through the streets of downtown Detroit to protest a leaked document that showed that the U.S Supreme Court was prepared to overturn Roe v Wade, on May 7, 2022. Credit - Matthew Hatcher—SOPA Images/LightRocket/Getty Images

In the wake of a leaked Supreme Court draft opinion overturning Roe v Wade, a handful of state and local Republican politicians appeared to support proposals restricting access to birth control.

In Arkansas and Louisiana, some Republican lawmakers announced their support for bills that would effectively result in immediate bans on certain emergency contraception, including copper intrauterine devices (IUDs) or Plan B, the so-called morning after pill, if the Supreme Court indeed overturns Roe. In Idaho and Michigan, conservative lawmakers and candidates expressed interest in proposals that would directly restrict access to emergency contraceptives.

The reasoning behind such proposals is old: antiabortion groups have long argued that such contraception is tantamount to abortion, since it prevents a pregnancy after unprotected sex has occurred. 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. Access to copper IUDs and the morning-after pill arguably are not 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.”

The constitutional right to birth control may be in jeopardy

The Supreme Court is expected to issue a final ruling in June. If the justices do indeed 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. That definition that would likely raise legal challenges over whether emergency contraception violates the law. On Thursday, Louisiana Gov. John Bel Edwards, a pro-life Democrat, said he opposes the bill, and called it “unconstitutional” in a public statement.

A so-called trigger law in Arkansas, which would ban most abortions in the state if Roe is overturned, could have a similar effect on access to emergency contraceptives, the state’s Democratic Party warns.

The legal arguments are complicated by the science of emergency contraception. Copper IUDs and the morning-after pill do not terminate a pregnancy after conception has occurred; instead, morning-after pills temporarily prevent ovulation, thereby stopping an egg from being fertilized, and copper IUDs make sperm less likely to fertilize an egg, according to the National Institutes of Health and the American College of Obstetricians and Gynecologists, among other leading medical institutions.

Read More: Long-Lasting Birth Control Is Already Hard to Get. Advocates Worry It May Only Get Worse