Contraceptives have been all over the news recently, and we have discussed contraceptives recently here on The Pulse, in the wake of the Supreme Court of the United States (SCOTUS) decision on the Dobbs versus Jackson Women’s Health Organization abortion case. This decision regards a Mississippi law prohibiting abortions after 15 weeks gestation, but, along with upholding the Mississippi law with 6 justices for and 3 against, the Dobbs decision also overturned the Roe V Wade decision of 1973, 5-4. Written by Associate Justice Samuel Alito, the Dobbs decision reverses Roe v Wade by taking issue with what is known as substantive due process, a mechanism through which Roe v Wade applied the 14th Amendment to protect abortion as a privacy right. Since SCOTUS previously applied substantive due process approaches to protect other privacy rights, including the right to contraceptives beginning with the Griswold v Connecticut case.
Decided by the SCOTUS in 1965, Griswold v. Connecticut established that married couples had a Constitutional right to use contraceptives. The decision was reasoned based on “zones of privacy” provided by the Bill of Rights, specifically, the 1st, 3rd, 4th, 5th, and 9th Amendments, and on the Due Process Clause of the 14th Amendment applying such privacy protection to the states. Dovetailing with the legal framework set by the Griswold decision, Americans had been hearing about the thousands of babies born with horrible deformities to mothers who had taken thalidomide, an anti-nausea drug that had been licensed in the UK from 1958 to 1961. Also, the 1960s had seen an epidemic of rubella virus, causing congenital rubella syndrome, an awareness of which eventually led to an increase in the number of abortions in states where it was legal, and, for those who could pay, also where it was not legal. But meanwhile, oral contraceptives —the pill— had come on the scene in 1960. And yet, there were many states, including Connecticut, that had laws on the books prohibiting or restricting contraception.
Countering substantive due process, the Dobbs decision may open the door for future rulings against contraceptive rights. In his concurrence in Dobbs, Justice Clarence Thomas was the only anti-Roe justice to admit this, but he admitted it in a very big way, suggesting that the Court may revisit the decisions of Griswold and other personal privacy cases that were decided based on the same kind of reasoning as Roe v Wade.
Even without legislators in any anti-abortion US state attempting to outlaw contraceptives overall with the goal of getting the issue to SCOTUS in a way that could get Griswold v Connecticut and other contraceptive rights cases overturned, there are some categories of contraception that may already be in the crosshairs of some anti-abortion law makers. This is due to a belief that some anti-abortion politicians and activists hold that any product of conception, even a zygote, the one cell entity that results from fertilization, is a baby, worthy of personhood status. Consequently, they object to any type of contraception that can prevent implantation. Implantation is the attachment of a blastocyst —a kind of early embryo consisting of about 100-150 cells that has developed from a zygote over the course of 5-6 days—to the endometrium, the inner lining of the uterus. Even though the number days and weeks of pregnancy is counted from the first day of the most recent menstrual period (meaning long before fertilization, pregnancy does not begin until implantation, but there are anti-abortion people who consider the prevention of implantation to be an abortion. Consequently, they are opposed to interventions that can prevent implantation. This means certain intrauterine devices (IUDs), which we’ll discuss in another post, and for some antiabortion politicians and activists it also means treatment called levonorgestrel, commonly known as ‘Plan B’, or the ‘morning-after pill’.
Now, levonorgestrel is not thought to prevent implantation. Several years ago, there was a little bit of evidence published suggesting that it might possibly change the endothelium in a way that interferes with implantation. However, its main action is to prevent fertilization, especially when taken as directed and within 72 hours of unprotected intercourse. While the language of some new and emerging laws in some antiabortion states may put such emergency contraception in the crosshairs, in late July, the US Department of Health and Human Services issued a statement, directing its agencies to protect the right to reproductive case, including emergency contraception, Plan B. Federal authorities are thus working to prevent the interpretation of the Dobbs decision by any state from interfering with contraceptive use, including Plan B.
You should not rely on levonorgestrel as a primary means of contraception. Instead, you should consult with your gynecologist, or with your family physician, to decide which contraceptive method is the best for you, and then choose a contraceptive plan and stick with it. But also remember that levonorgestrel is available to help you prevent pregnancy, should you find yourself in a situation in which you ended up having unprotected sex and do not wish to become pregnant. Do not hesitate in such a situation, because then you may find that you are pregnant, without wanting to be pregnant, in which case early elective abortion will be the next option, but this may be complicated if you reside in certain US states.