In the near future, will American women be legally barred from using the most popular form of birth control, the pill? And could a doctor who prescribes an IUD for a woman go to jail? What about the woman herself? Could she do hard time for her intrauterine device?
Sound far-fetched? Consider this scenario. It's 2010, and John McCain is president. Two Supreme Court seats had become vacant a year earlier, and McCain appointed strict conservative judges, as promised. Roe v. Wade has been overturned and abortion has become the province of the states.
A number of states promptly outlawed abortion. In one of those states, an anti-choice group brings a suit in federal court claiming that dispensing a standard-issue birth control pill is the legal equivalent of performing an abortion.
In fact, a woman did bring such a suit in Ohio in 2000, and a federal judge accepted her arguments as plausible, placing on the court's docket the definition of when pregnancy begins.
That case did not succeed, but what would happen in 2010 to a similar suit under a McCain court? It is very plausible that a conservative court would accept the argument, advanced by many on the right, that human life begins when the union of sperm and egg occurs.
Both the National Institutes of Health and the American College of Obstetricians and Gynecologists (ACOG) disagree, defining the beginning of pregnancy as the time when the fertilized egg is implanted in the uterine wall -- usually about five or six days after fertilization.
But if the Supreme Court agrees with the plaintiff in 2010 that life begins at the instant of conception, and since both the birth control pill and the IUD could theoretically interfere with implantation, a state could define them as murder.
In fact, several recent news stories indicate that we are already heading in that direction. Colorado voters will see on their ballots in November an initiative to ban "any birth control pill or intrauterine device that works to prevent implantation." And now the Bush administration's department of Health and Human Services has announced a proposal that would, in effect, permit any federal grant recipient to block a woman's access to contraception.
HHS is setting an ominous precedent. In the past, the federal government has accepted ACOG's definition of when pregnancy begins. But now, HHS is validating the extreme right-to-life position that the pill and the IUD cause abortions by saying that "Both definitions of pregnancy inform medical practice."
A McCain court, following this line of reasoning, could also reject the definition of ACOG and accept the language of the Colorado initiative, ruling that life begins at fertilization. So any state that has banned abortion could legally ban the pill and the IUD. Dispensing these contraceptives could be criminalized.
Many -- perhaps most -- Americans see the idea of the right to access to modern means of birth control as a settled fact. After all, since the Supreme Court struck down a Connecticut statute outlawing the sale of contraceptives in 1965, that right has been protected by law. But if certain forms of birth control are re-defined as abortifacents, that protection would vanish.
It is also possible that state law could forbid doctors to remove the results of an ectopic pregnancy from a woman's body. This occurs when an egg is fertilized by sperm in a fallopian tube (the tubes connecting the ovaries to the womb). Such a fetus, of course, cannot live, but if it is now by law a "person,"' it cannot be removed. That would constitute an abortion.
Sound laughable? In El Salvador, the New York Times reports, doctors are not allowed to remove fetuses from the fallopian tube. They must wait until the fetus dies, and by that time, a woman is at severe risk of dying from infection.
What's really troubling is that all these initiatives, court cases, administration rulings etc. -- are the building blocks of a new legal definition of when life begins that would outlaw most contraception. If you think this is out of the realm of possibility, consider the language that justice Anthony Kennedy used in the decision outlawing partial birth abortion. Kennedy was the author of the Court's 5-4 majority opinion in Gonzales v. Carhart, marking the first time the Court has upheld a federal ban on a specific abortion procedure since it first established a woman's right to an abortion in Roe in 1973.
In his opinion, Kennedy picked up the exact language of the far right, citing a brief that offered the testimonials of more than 100 women who claimed to have suffered physical and psychological trauma after having an abortion. The brief was filed by the conservative Justice Foundation, whose "Operation Outcry" project represents women who regret their abortions.
No reputable social science supports the idea that women are regularly traumatized by abortion. Reliable research tells us that only a tiny minority of women suffer great trauma after abortions. But there it was, in black and white, rotten science in an important Supreme Court decision.
How soon will we hear echoes of the religious right in a Supreme Court decision that claims, as HHS is now doing, that that the pill and the IUD do, in fact, cause abortions? If Kennedy can simply disregard years of good research about abortions and trauma, why can't another justice disregard what respected medical experts say about when pregnancy begins?
A frightening new round of attacks on women's reproductive rights--even their right to contraception -- is just around the corner. The mainstream media has almost totally ignored this story, and women are the losers, thanks to that neglect.
All these initiatives against contraception, says Rachel Laser of the National Women's Law Center in Washington, are "outrageous. " And she says, perhaps prophetically, "We're going back in time."
Boston University journalism professor Caryl Rivers is the author of "Selling Anxiety: How the News Media Scare Women" (University Press of New England.)