Republicans are already gearing up for the next battleground: birth control.
Less than a week after the leak of a draft Supreme Court opinion that would erase the national legal right to abortion, Mississippi Gov. Tate Reeves declined to say in an NBC segment Sunday whether he’d sign into law legislation banning contraception.
“I don’t think that’s gonna happen in Mississippi. I’m sure they’ll have those conversations in other states,” said Reeves, whose state has been at the forefront of the national conservative campaign to curb abortion access. Mississippi in fact passed the 15-week abortion ban that is now at the center of the case that spawned the draft opinion, which would overturn Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide.
“But you’re not answering the question,” host Chuck Todd told Reeves.
“Well, there’s so many things that we can talk about,” Reeves replied.
Over in Idaho, state Rep. Brent Crane, who heads a House committee, said in a TV interview that he would “probably” agree to hear legislation that proposes to ban the emergency contraception Plan B.
“IUDs, I’m not sure yet where I would be on that particular issue,” Crane added.
Anti-abortion activists have long suggested that Plan B, IUDs, and other forms of hormonal birth control are “abortifacients,” meaning that they end existing pregnancies. (Exactly which forms of birth control fall under this category depends on who you ask.) But they’re scientifically incorrect: None of these methods end an existing pregnancy. Instead, contraceptives, by definition, work by preventing it.
Anti-abortion activists often believe that pregnancy begins when a sperm fertilizes an egg. But the medical community says it starts once a fertilized egg becomes implanted in a uterus. And, regardless, Plan B and IUDs do not usually work by preventing implantation.
Plan B and other forms of emergency contraception “function primarily, if not exclusively, by inhibiting ovulation, thereby preventing fertilization from occurring,” several medical associations, led by Physicians for Reproductive Health and the American College of Obstetricians and Gynecologists, wrote in a 2013 brief to the Supreme Court. That brief also explained that IUDs (which can be both hormonal and non-hormonal) can work by stopping sperm from reaching an egg and preventing ovulation. Only when a non-hormonal IUD is used as emergency contraception can it prevent the implantation of an already-fertilized egg.
Still, “contraceptives that prevent fertilization from occurring, or even prevent implantation, are simply not abortifacients, regardless of an individual’s personal or religious beliefs or mores,” the brief read.
At the time, the nation’s highest court was debating whether to let Hobby Lobby deny coverage of certain forms of contraception to its employees, because Hobby Lobby’s owners opposed them on religious grounds. Ultimately, the Supreme Court agreed to let Hobby Lobby do so—in an opinion authored by Justice Samuel Alito, the same justice who wrote the draft opinion on Roe that got leaked last week.
But, in battles between politics and science, science hasn’t notched too many victories. If Roe falls and states are able to ban abortion, legislators may move to legally redefine certain kinds of contraception as abortion-inducing and outlaw them.
“Simply by criminalizing abortion, they may be sweeping in some birth control anyway,” Mary Ziegler, who studies the legal history of reproduction at Florida State University College of Law, told VICE News last December, after arguments in the Mississippi abortion ban case.
Roe is also one building block in a line of Supreme Court cases that includes the 1965 case Griswold v. Connecticut and the 1971 case Eisenstadt v. Baird, which both expanded people’s legal rights to contraception. If Roe is deemed bad law, those cases—and thus the right to contraception itself—may be in danger.
“In the current political climate, with the religious right having more and more power in government, it could lead to surveillance and punishment of people having unacceptable sexual relationships,” Carrie Baker, professor and director of the Program for the Study of Women and Gender at Smith College, told VICE News last week. “I anticipate a world where a woman could get fired for using contraception, or potentially get fired for having an abortion or for having premarital sex.”