A “trigger law” is a nickname for a law that is unenforceable, but may achieve enforceability if a key change in circumstances occurs.
Should the court reverse Roe, abortion would immediately be banned in several states due to what are known as “trigger laws”: legislative bans on abortion that aren’t active while Roe is in place, but will be “triggered” and automatically make abortion illegal as soon as the landmark decision is overturned.
With trigger laws in 13 states poised to go into effect if the Supreme Court strikes down Roe v. Wade, a new era of restricted access to birth control could unfold in states that narrowly define when life begins, legal experts say.
“This is the new Jane Crow that we’re about to enter,” said Michele Goodwin, a chancellor’s professor of law at the University of California, Irvine, and the author of “Policing the Womb: Invisible Women and the Criminalization of Motherhood.”
“It’s no longer a hypothetical — the reality is already here,” Goodwin said, pointing to states that are considering legislation to limit which kinds of birth control residents can acquire, like Louisiana and Idaho.
(Alicia Victoria Lozano. “Some birth control could be banned if Roe v. Wade is overturned, legal experts warn.” https://www.nbcnews.com/news/us-news/birth-control-banned-roe-v-wade-overturned-legal-experts-warn-rcna28253. NBC News. May 12, 2022.)
Overturning Roe v. Wade is opening the door to legislation that bans or restricts birth control. Some conservative lawmakers are seeking to put limits or eliminate certain types of emergency contraception, such as Plan B and other morning-after pills that can be used within 72 hours of intercourse to prevent pregnancy.
There are already attempts to tighten restrictions on emergency contraception, such as Plan B, and intrauterine devices (IUDs). In 2021, for instance, a Missouri bill attempted to ban Plan B and IUDs from coverage under Medicaid. Plan B prevents the release of an egg and may prevent fertilization. Research suggests it likely does not work after fertilization or if the zygote has already implanted.
Word of the Roe v. Wade ban has lawmakers in other states considering similar attacks on birth control.
A leading state legislator in Idaho suggested last week that he would be open to holding hearings on banning emergency birth control, and Sen. Marsha Blackburn, R-Tenn., recently denounced Griswold v. Connecticut, the 1965 case that expanded access to contraception to unmarried people.
In Louisiana, legislation would classify abortion as a homicide and define “personhood” as beginning from the moment of fertilization. Contraception methods like Plan B and certain types of intrauterine devices, or IUDs, could be restricted under the bill, said Cathren Cohen, a scholar of law and policy at the UCLA Law Center.
“Anything that would prevent a fertilized egg from turning into a pregnancy and being born into a baby could be considered a homicide,” she said. “If you define a pregnancy and you define a person as including just this fertilized egg, then technically you are legislating that an IUD can cause an abortion.”
(Alicia Victoria Lozano. “Some birth control could be banned if Roe v. Wade is overturned, legal experts warn.” https://www.nbcnews.com/news/us-news/birth-control-banned-roe-v-wade-overturned-legal-experts-warn-rcna28253. NBC News. May 12, 2022.)
Make no mistake, stopping a woman's right to choose an abortion doesn't just affect what many consider a life that begins at conception. The ramifications of the ban are intrusive in other ways. To understand fully all the interpretations and complications of banning Roe v. Wade, one must view all the possible outcomes. They are daunting in their scope.
Striking down Roe v. Wade sets up challenges to other protections based on the implied right to privacy – this could specifically lead to challenges to the right to use birth control.
In the 1965 case of Griswold v. Connecticut, the Supreme Court ruled that married couples had the right to use birth control despite Connecticut's long-standing restrictions on contraception. In 1972, the right to use birth control was extended to unmarried people in Eisenstadt v. Baird.
Even if Roe v. Wade is overturned, other Supreme Court rulings based on a right to privacy would still stand. Challenges would have to wait for cases to enter lower courts and then proceed through appeals before potentially reaching the Supreme Court.
However …
"Even though the draft document from Justice Alito stated that the ruling would only apply to abortion and not to any other reproductive rights, nothing would prevent SCOTUS from ruling subsequently on whether people have a right to birth control," Paula Tavrow, director of the Bixby Program in Population and Reproductive Health at UCLA, said in an email.
"For instance, they might decide that some people, such as adolescents or unmarried people, do not have the same rights to birth control as other people. Or that adolescents need to get parental approval before obtaining birth control," Tavrow added.
(Taylor Leamey. “How Overturning Roe v. Wade Could Affect Your Access to Birth Control. Cnet. May 11, 2022.)
“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.
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.”
(Jasmine Aguilera. “Overturning Roe Could Lead to Restrictions on Birth Control.” https://news.yahoo.com/overturning-roe-could-lead-restrictions-202239659.html. Yahoo News.
The Crux Of the Issue
You cannot simplify what striking down Roe v. Wade means. The Supreme Court, as all lower courts in the land, doesn't just decide a case and shut the books on an issue. Instead, they lay down a principle to be applied in future controversies.
A leaked draft majority opinion in the case, written by Justice Samuel Alito, largely focuses on a (dubious) history of abortion law in an attempt to show that legal abortion is not “deeply rooted” in the country’s “history and tradition” in his argument for overturning the 1973 Roe v. Wade decision.
You must see the direction of the Court. That direction in denying the right of a woman to choose is heading towards restricting access to birth control.
People like Kristan Hawkins, president of the anti-abortion rights group Students for Life of America, are pushing for state and federal legislation to recognize human life as beginning "at conception." Her group takes the position that some devices and pills that can prevent implantation of a fertilized egg are "mislabeled" as contraception – a position at odds with the American College of Obstetricians & Gynecologists, which defines pregnancy as beginning at implantation.
Hawkins's group is far from being alone in their views. For instance, you have conference leaders of the anti-abortion group Heartbeat International. Kiera Butler reports, while some conference leaders made allowances for barrier methods like condoms, others objected to them as unchristian. “My goal is to expose the risks and dangers of our birth control culture,” a presenter said.
(Spencer Bokat-Lindell. “If Roe Goes, Could Birth Control Be Next?” https://www.nytimes.com/2022/05/11/opinion/roe-supreme-court-birth-control.html. The New York Times. May 11, 2022.)
If the Court is willing to do away with longstanding precedent like Roe, it's impossible to predict what other rights also could be in question.
Khiara M. Bridges, a law professor at the University of California-Berkeley, said Alito's originalist view of the Constitution offers no guarantees that women's rights will be protected.
"Because women were not part of the body politic, the rights that are important to people who can get pregnant are just not contemplated by the Constitution," Bridges said. "The drafters of the Constitution could care less about what women's concerns were, what they needed in order to be fully human in society."
(Sarah McCammon. “What would overturning Roe mean for birth control?” National Public Radio. May 11, 2022.)
The Final Point
Despite all the denial and
dismissal of the idea that banning Roe v. Wade will affect birth
control, conservative factions see great opportunities to impose such
restrictions. Their hand is on the trigger of a weapon that will destroy other freedoms.
As the legal scholar Melissa Murray wrote in December 2021, “A decision overruling Roe v. Wade would threaten an entire line of jurisprudence rooted in the 14th Amendment’s guarantee of liberty.” This line of cases, she added, goes back to a 1923 decision guaranteeing parents the right to raise their children without undue state intervention, and it includes the right to use contraception.
And, we all know there is a wing of the conservative group or pro-lifers that is opposed to abortion who only support sexual intercourse when it is within the context of marriage and when it is designed to procreate,” said Priscilla Smith, a lecturer on reproductive justice at Yale Law School, “The use of contraception gets in the way of that.”
Social conservatives who object to non-procreative sex may also oppose birth control methods that prevent pregnancy even before fertilization. And, let's look beyond to understand fully further implications of the ban. According to Spencer Bokat-Lindell,
staff editor at The New York Times, far-reaching consequences for other reproductive rights and health care are at stake.
Bokat-Lindell looks at these considerations:
Ectopic pregnancy treatment: The leading cause of maternal mortality in the first trimester, ectopic pregnancies cannot be carried to term; those that do not resolve in miscarriage can be treated only with medication or surgery that terminates the pregnancy. In El Salvador, where abortion is banned, “obstetricians routinely make the patient wait until the fallopian tube explodes and the embryo dies before intervening to save the mother,” wrote Michelle Oberman, a Santa Clara University law school professor, in this newsletter.
Miscarriage care: As Kaitlin Sullivan explains at NBC, abortions and miscarriage treatment often make use of the same procedures and medications. In places with severe abortion restrictions, like Texas, those who miscarry may face limited treatment options and a lower standard of care, as well as increased state scrutiny and criminal prosecution.
In vitro fertilization: Accounting for about 2 percent of all births in the United States, I.V.F. typically entails the fertilization of several eggs to maximize the chance of successful pregnancy; many of the embryos often turn out to be nonviable or superfluous. “Experts in the field now warn that state laws defining fertilization as the moment life begins could throw the procedure into legal jeopardy,” Michael Wilner reports for McClatchy.
Criminalization of “bad mothers”: In his draft opinion, Justice Alito writes that future state laws regulating abortion should be allowed to stand if they can be said to serve “legitimate interests,” which include “respect for and preservation of prenatal life at all stages of development” and “the mitigation of fetal pain.”
Under this logic, Dara E. Purvis, a professor at Penn State’s law school, argues in Slate that states could conceivably justify restrictions on all manner of behaviors during pregnancy, including drinking alcohol, smoking cigarettes, taking antidepressants or working a physically demanding job.
(Spencer Bokat-Lindell. “If Roe Goes, Could Birth Control Be Next?” https://www.nytimes.com/2022/05/11/opinion/roe-supreme-court-birth-control.html. The New York Times. May 11, 2022.)
I, Being born a Woman and Distressed (Sonnet XLI)
Edna St. Vincent Millay (1892-1950)
I, being born a woman
and distressed
By all the needs and notions of my kind,
Am
urged by your propinquity to find
Your person fair, and feel a
certain zest
To bear your body's weight upon my breast:
So
subtly is the fume of life designed,
To clarify the pulse and
cloud the mind,
And leave me once again undone, possessed.
Think
not for this, however, the poor treason
Of my stout blood against
my staggering brain,
I shall remember you with love, or season
My
scorn with pity, —let me make it plain:
I find this frenzy
insufficient reason
For conversation when we meet again.
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