The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which eliminated the federal right to abortion has produced more questions than answers. It not only created uncertainty around the future of abortion accessibility and legality, but also around birth control and contraceptives. As states begin to test the new limits of what overturning Roe v. Wade truly means – a difficult question presents itself: Will states extend abortion restrictions to limit certain types of contraceptives?
One type of contraception stands out as particularly at-risk: Intrauterine devices (“IUDs”). Laws based on the viewpoint that “life begins at fertilization” are particularly ripe for a broad and far-reaching interpretation that could eventually include banning this type of contraception.
The concept that a fetus is considered an unborn child is not new. However, the idea of fetal personhood has taken on new meaning and is helping drive exceptionally restrictive anti-abortion measures. These measures are likely to move beyond, or at least test the limits of, what is traditionally considered abortion.
IUDs are generally known as a preventative form of birth control, blocking fertilization and sometimes ovulation. However, they can also prevent implantation of a fertilized egg; this is the scenario in which IUDs enter a gray area in states that define life as beginning at fertilization.
In Kentucky, which has one of the most restrictive abortion bans in the country, the statute currently provides an exemption for contraceptives. However, it’s easy to see how a strict interpretation of the statute’s key definitions could result in the exclusion of contraceptives in the future. For example, the Kentucky statute defines an “unborn human being” as beginning at fertilization, yet it concludes by stating that “nothing in this section may be construed to prohibit…a contraceptive measure.” The language of the statute contradicts itself: It clearly exempts contraceptives from the ban, but key terms have been defined in a way that suggests they should not be exempt.
Meanwhile, in statutes that do not state an exemption for contraceptives that inhibit fertilization, IUDs are an open question. The legality of these contraceptives will likely be determined by the courts, or through clarifying language in amended statutes. Legislators in Missouri, Idaho, and Louisiana, among others, have already declared that life begins at fertilization. Missouri’s statute is one of the most restrictive; there are no exceptions for rape or incest. Confusion about the terms of Missouri’s statute were almost immediate. A hospital system in Kansas City stopped providing emergency contraception as soon as the state’s trigger ban took effect, and only resumed providing it upon clarification from the governor that contraceptives were exempt from the ban.
The lack of clarity and consistency in terminology poses a barrage of questions for pregnant individuals, families, doctors, and insurance providers. Legislatures will either have to continue refining and updating statutes as confusion arises, or the courts will become the interpreters, inserting precision into vague and potentially conflicting statutory language.
Legislators could argue that their intention is to only ban abortion procedures, as evidenced by the current carve-outs for contraceptives. However, in light of the other types of exemptions up for debate, the underlying intent warrants skepticism. Other exemptions in question include whether to allow abortion procedures in cases of rape, incest, and non-viable pregnancies, which suggests that the objective is to impose increasingly stringent restrictions. As these questions arise state-by-state, in legislatures that are constantly prescribing more restrictive measures, it is hard to imagine that definitive clarifications are coming anytime soon.