Access to Birth Control Is in Danger if Roe is Overturned

What will happen to contraception and IVF access if personhood is defined to start at fertilization?

A demonstrator during a rally outside the U.S. Capitol to demand the Senate take action on gun safety on May 26, 2022, in the wake of the Robb Elementary School shooting in Texas. (Tom Williams / CQ-Roll Call, Inc via Getty Images)

When does life begin? As a midwife and a physician, we know this is more a philosophical question than a medical one—and one even scientists can’t definitively answer. Nonetheless, legislators have made numerous attempts at defining and enshrining fetal personhood into law. Until this point, all such efforts have failed. The legal justification in favor of overturning Roe in the leaked Supreme Court draft opinion by Justice Samuel Alito, however, provides a path for another key goal of the anti-abortion movement: establishing fetal personhood. 

When Does Life Begin?

A bill recently proposed in Louisiana suggests life begins at the time of fertilization. Others have argued it begins at implantation into the uterine lining. Still others say life begins at some undefined point between fertilization and birth, such as the presence of a heartbeat. 

The original decision in Roe v. Wade did not attempt to define the presence or absence of personhood, but rather marked a point in time at which “the state’s interest in preserving the potential life of the unborn child overrides any individual interests of the woman.” This has been widely interpreted to mean the point at which the “unborn child” could survive independently—currently around 24 weeks of gestation, depending on many factors including access to advanced neonatal care.

These philosophical definitions of when life begins are the basis of legislators’ attempts to restrict the bodily autonomy of people who can get pregnant. Consequently, legislators—most of whom have no medical expertise and cannot get pregnant themselves—in one state could assert that life begins at fertilization, while a neighboring state could say life begins at birth.

What Happens to Contraception and IVF Access if Fetal Personhood Is Defined To Start at Fertilization?

It is critical to think through the implications of these different assertions on access to contraception.

Many forms of contraception, including pills, rings, patches, injections and implants, prevent pregnancy by preventing the release of eggs from the ovaries. Intrauterine devices (IUDs), both the hormonal and non-hormonal type, prevent the egg and sperm from meeting, thereby inhibiting fertilization. Though current data does not suggest these methods impair implantation in the uterine lining, many still believe that is the case. Therefore, if legislation like the bill proposed in Louisiana defining life as beginning at fertilization became law, all hormonal contraception and IUDs might be outlawed just because some people believe they interfere with implantation and therefore “endanger” the new “life.”

Despite data to the contrary, some believe emergency contraceptive pills such Plan B and Ella impact the uterine lining and could potentially impair implantation. This false belief could lead to restricted use. Condoms and other barrier methods of contraception theoretically should remain legal in a context of fetal personhood starting at fertilization.

Defining personhood as starting at fertilization also has significant implications for in vitro fertilization (IVF), which is used by thousands of people annually to grow their families. Judge Amy Coney Barrett has previously supported a group, the St. Joseph County Right to Life, whose executive director has stated discarding embryos created from IVF is considered abortion.

What Will Happen With Contraception if Fetal Personhood Is Defined To Start at Implantation?

Legislators who define life as beginning at implantation should, theoretically, agree that all forms of hormonal contraception, IUDs (whether hormonal or not) and emergency contraception should be legal. However, it is unclear how these legislators would treat miscarriage which, by definition, occurs after implantation and is extremely common. Would lawmakers in these states criminalize people who have miscarriages? Would all instances of pregnancy-related bleeding be treated as a potential crime scene? 

It is also unclear how these states would handle ectopic pregnancies, a leading cause of maternal death in the first trimester in which the pregnancy occurs outside the uterus. Despite widespread misinformation and failed legislation, this type of pregnancy cannot be treated by re-implanting the embryo into the uterus. Compared to defining personhood at fertilization, personhood centered on implantation is more permissive of contraception, but it still does not allow for comprehensive, evidence-based care of the pregnant person.

What Will Happen With Contraception if Fetal Personhood Is Defined To Start When There Is a “Heartbeat”?

States that define life as beginning when there is a detectable heartbeat should theoretically continue to allow the use of all hormonal contraceptives, IUDs and emergency contraception. They should also continue to allow abortion prior to the “heartbeat.” 

One major flaw with the so-called ‘heartbeat’ bills is that there is not actually a heartbeat at six weeks. What is seen on an ultrasound at this early stage in pregnancy is simply initiation of electrical activity in the area of the body that will become the heart. On its own, this electrical activity is not a marker of pregnancy viability.

What It Means To Be “Pro-Life”

Fetal personhood laws are an attempt at using philosophical or even religious beliefs to dictate policy, potentially violating the separation of church and state. In addition, there is no scientific definition of personhood. Just as science cannot speak to philosophical questions of life and death, neither should legislators. 

In many cases, the same legislators who are pro-life when it comes to unborn children are also opposed to policies that would support life once born. Take Mississippi, for instance, where the abortion case currently being decided by the Supreme Court originated. Despite high maternal and infant mortality there, lawmakers there have declined to expand Medicaid coverage for postpartum parents. At the federal level, Republican legislators have repeatedly blocked efforts for paid parental leave and other policies that support families.

Impact on the Healthcare System

States such as California, which are taking steps to expand birth control and abortion access, will see an influx of individuals from states with restricted access, which may overwhelm the healthcare system in these sanctuary states. This has already occurred in Oklahoma and New Mexico after the passage of S.B. 8 in Texas. The healthcare system must make accommodations for these predictable shifts now, as we have recently discussed.

Of course, these shifts will become moot if GOP lawmakers and agitators get their wish: federal legislation to outlaw abortion after six weeks of pregnancy—already the subject of behind-the-scenes meetings in Washington.

Practices “Deeply Rooted” in History and Tradition Are Not an Appropriate Standard

We take issue, as many others do, with Alito’s references to practices “deeply rooted in the Nation’s history and tradition” as a justification for restricting access to abortion. Abortion and contraception are long-standing practices, dating back to ancient Egypt. Of course, just because something is a tradition does not necessarily make it good: Prior to the Civil War, slavery was a long-standing tradition in this country—an atrocious human rights violation.

Act Now To Protect Your Reproductive Freedom

Consider these three simple actions that you can take now to protect your own body:

  • Choose and obtain a form of birth control such as condoms, IUD or oral contraceptives.
  • Obtain emergency contraception, such as Plan B or Ella.
  • Obtain medication abortion pills.

Three For Freedom, founded by Dr. Jennifer Lincoln, has links to ways to take all three of these actions now. You can also speak to your doctor or anyone else on your healthcare team. Act sooner rather than later, ideally before the official ruling is announced and trigger laws are enacted.

Perhaps most importantly, we must all continue to fight for our rights. The overturning of Roe v. Wade is not the end of the book. It’s just the beginning of the next chapter.

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About and

Arghavan Salles is a clinical associate professor of medicine at Stanford University and a senior research scholar at the Clayman Institute for Gender Research. She’s on Twitter: @arghavan_salles.
Amy Alspaugh, CNM, PhD, is an assistant professor at the University of Tennessee College of Nursing who studies reproductive health. (This piece reflects her views alone, not those of her employer.)