W(h)ither Contraception

Republicans (Re)define "person"

When people on opposite sides of a contentious issue, for example, abortion, use different meanings of a words, for example, “contraceptive” and "person," those on opposite sides cannot even understand one another.

  For instance, some people believe, in accordance with some religions, that a “person” exists from the time that a sperm penetrates an ovum. Others disagree.

  The disagreement surfaced specifically in the race for a Virginia seat in the United States House of Representatives between the Democratic incumbent, Abigail Spanberger, and her Republican challenger, Yesli Vega.  When the anti-abortion group SBA Pro-Life America supported Vega and her statement about whether rape could result in a pregnancy, the Spanberger campaign issued a press release drawing attention to the statement and saying that SBA Pro-Life America opposed contraceptives. The SBA disputed that characterization, and said that the group does not take a position on contraception.

  The methods Spanberger characterizes as contraceptives, including intrauterine devices (IUDs) and “Plan B,” like some subcutaneous patches, can avoid pregnancy by preventing a fertilized ovum, a zygote, from attaching to a womb.  If SBA believes that a zygote is a “person,” and therefore that those things are not “contraceptives” that prevent pregnancy, but rather abortifacients that terminate pregnancies, because they can terminate a zygote’s path to birth, then and only then can it be true that “that the group does not take a position on contraception.” Spanberger, like women, doctors, and scientists in general, does not define “person” the same way. 

  Since the United States Supreme Court’s decision in the case known as “Dobbs” said that states may constitutionally outlaw abortion, five states’ Republican-controlled legislatures have introduced or passed laws to make fetuses “persons” under law. This view may have a number of consequences unrelated to abortion.

  The first unanticipated side-effect surfaced when a pregnant woman in Texas, which has such a law, contested her charge of driving alone in high-occupancy-vehicle (HOV) lane of a road because she was, she contended, not one person, but rather two.

  One can imagine other complications.  What about fire-safety regulations as to the number of “persons” that can be in a room at one time?  How about bans on “persons” under the drinking age in bars? Or the number of “persons” who can safely occupy an elevator car?

 One can reasonably conclude from these and many other examples that the word “person” does not actually encompass what some state legislatures say it does, a zygote.  If so, one can also infer that a contraceptive that can act after fertilization does not necessarily cause an abortion, but only a pregnancy. And that, in turn, implies that SBA’s statement is incorrect; it does have “a position on contraception” that acts as IUDs, morning-after pills like Plan B, and some other contraceptives do.

  And in fact, the Supreme Court’s decisions in Roe and its progeny did address the question of personhood, albeit indirectly, by allowing abortion bans after the second trimester.  That was because the court then believed that a fetus could at that point in gestation survive outside the womb.

  But so-called “personhood” bills are not the only threat to the use of contraceptives.  Associate Supreme Court Justice Clarence Thomas, in his concurrence in Dobbs, indicated that he thought that the court should overturn not only Roe, but also, among other decisions, Griswold, the decision that led directly to Roe.  The relevant Connecticut law intended to deter prostitution and adultery prohibited using “any drug, medicinal article or instrument for the purpose of preventing conception.” Although the law overturned in Griswold dealt primarily with barrier contraceptives such as condoms, diaphragms, and sponges, it also referred to all contraceptives, including those like IUDs that could merely prevent implantation. Thomas thought that the Supreme Court should overturn Griswold as soon as a suitable case could be brought to the court. That would permit states to prohibit some means of birth conmtrol that are commonly considered contraceptives.

  In fact, Justice Thomas’s arguments are more coherent than Justice Samuel Alito’s implicit arguments to the contrary as to Griswold’s constitutionality in his majority decision on Dobbs.  If Justice Thomas’s views prevail, then by extending personhood not only to fetuses, but also to zygotes, five Republican-dominated states could prevent millions of American women from legally using contraceptives such as IUDs, Plan B, and subcutaneous patches . The Supreme Court would do nothing to help them.

  Yet, there is hope. Chief Justice John Roberts stated in his concurrence in Dobbs that the overturning of Roe therein was unnecessary to that case’s outcome and therefore was only an example of dicta, that is, things unworthy of respect as precedent.  Associate Justice Brett Kavanaugh was born into a Catholic family, but has seemed more interested in politics than in religion. He must have been very disappointed when he learned how Dobbs’ overturning of Roe hurt Republicans at the polls.  It is conceivable that Roberts might persuade to join him in some future abortion-related case and save Griswold 5-4 from the ax.

  In sum, my point is simply that Republican state legislators’ novel use of the word “person” may lead to millions of Amerisan women’s loss of Griswold’s constitutional protection for their use of things like IUDs, subcutaneous patches, and Plan B that they know as “contraceptives.” Justice Kavanaugh may ultimately be the only person who can prevent that from happening.