Going To the Slammer with Your IUD

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.)

Comments

[LordMoon]

Actually I don't believe this is so far fetched as it initially reads. I think that something like this is quite possible.

The fastest growing demographic groups in America are religious, either conservative right wing, or Catholic, because they are the ones having the most families. And they have very large families.

Consequently American's politics is shifting father and father to the right, as the population explodes for conservative religious groups.

Quite simply, the left is not reproducing. Nor is that likely to change at any time in the future, what is likely to change, are laws on marriage and reproductive law, toward the more conservative end of the spectrum. Birth control may in fact be outlawed in some states at some point in the future, those states with the largest numbers of fundamentalist christians.

Divorced homes produce fewer children, and children of divorce also have fewer children.

While in conservative homes it's just the opposite, they tend to avoid divorce, have larger families and their children have more children as well.

For non conservatives, marriage has too many liabilities. These demographics fortell a future, for which G. W. Bush was just a preview.

[NoSillyName]

Mormoms are the new Catholics, in terms of family size.

[1will]

Sounds like a pretty far fetched scenario. Contraception is not going to be outlawed in American. Fear mongering to get a few more votes is commonplace and this is no different than the Right running on fears of terrorism.

[NoSillyName]

I regret having my IUD implanted as it caused nothing but infection & sterility and was later taken off the market (except in third world countries).

However, I am sick to death of the men who think of women as nothing more than incubators for the propagation of their genes.

IMO, an existing human takes precedence over that which has not reached the stage of viability.

To quote someone, "If men got pregnant, birth control and abortion would be sacraments." (I added "birth control" to that quote heard elsewhere.)

Gimme a damn break.

[curmudgeon3]

According to fundamentalist christians, women exist only to please men and produce more human beings. Since other amendments to the Constitution are being cast aside (the Fourth Amendment the latest casualty), overturning the Nineteenth Amendment must lie somewhere near the top of the fundies' wish list. If the ultimate goal is to outlaw anything that might stand in the way of producing new human life, the following could someday be outlawed:

1) Masturbation
2) A woman refusing the sexual advances of a male, regardless of the circumstances

Think it couldn't happen? How many of the outrages of the present day would any of us have predicted a decade ago?

[curmudgeon3]

How else are we going to ensure that we have enough soldiers to send all over the world to protect and enhance the profits of multi-national corporations?

And why should rich people (who can afford to travel to foreign countries where abortions are still legal) produce these children when we can ensure that those with lesser means bear the financial costs of raising those destined to become cannon fodder?

[Merlin7]

This is another dramatic example of how religion poses an increasing threat to democracy here in the U.S., not just in the dusty backwaters of the Mideast and Central Asia. Conservatives' nonsensical abortion stance is based on the strange -- and completely unsubstantiated -- notion that a soul is magically inserted into the human egg at the moment of conception. That little nugget of wackiness is the rock upon which thousands of years of terror, oppression and stupid legislation has been based.

Yet many Americans just don't get it and continue to bankroll, directly or indirectly, the forces that seek to take away their basic freedoms. These gullible folks even speak proudly of being "moderates" in religion, apparently unaware that by supporting any institution of superstition they are supporting all of them. And, oh yes, the pious brown-shirts of the religious right are subsidized by our tax dollars: We really are buying the ropes they will use to hang us.

[DharamDev]

The soul enters egg from the sperm when it is fertilized. Otherwise, how does it grow? Similarly, when the soul leaves, the body is dead. Not just in human beings, but in all life. If people respected the soul, a spiritual spark of God, there would be no problems.

sri-bhagavan uvaca
karmana daiva-netrena jantur dehopapattaye
striyah pravista udaram pumso retah-kanasrayah
"The Personality of Godhead said: Under the supervision of the Supreme Lord and according to the result of his work, the living entity, the soul, is made to enter into the womb of a woman through the particle of male semen to assume a particular type of body."
http://srimadbhagavatam.com/3/31/1/en

If God consciousness is a threat to democracy, good. Democracy is practically synonymous with corruption. Nearly everyone is a fool, they each cast a vote and the election is decided by which team has the most money or who is more corrupt. It hardly matters because all the candidates are corrupt. No honest person would run for office in such an environment.

[NoSillyName]

It grows by cell division.

[lisakaz2]

This riculous anti-birth control argument conveniently forgets that women can and do sometimes can get eggs fertilized but they will not implant. Is that now an abortion? (It wouldn't even be noticed as a miscarriage.) And what of eggs attached to the fallopian tube, the ecoptic pregnancy? Is this Salvadoran ban on intervention going to kill women here?

The MSM is ignoring ANYTHING that makes McCain look bad. This deserves a lot of discussion and concentrated response. Women cannot be made prisoners of biology again, esp. for the service of soldiers for an imperialistic state. I think frankly the goal of abstinence education IS to fail, so that more poor kids and hence soldiers are available.

[indypete]

Ladies and gentlemen, thank you for flying British Airways. We are about to land in the United States... please set your watches back one hundred years.

[strangelet]

The new HHS position is contrary to the majority of medical opinions, as well as to the majority of my own opinions. I've been ambivalent about abortion since I saw the ultrasound of my first kid. On the other hand, that was four months along, and still looked like a frog.

The fertilization vs implantation argument is, to use the technical term, nuts. We're talking about a clump of cells that has a small possibility of turning into a human being. The probability of a fertilized egg making it all the way has to be small; if not, then virtually every act of insemination (without birth control) during fertile periods would result in a child, and the planetary population would be 100 billion.

There are, I think, two possible arguments in favor prohibiting birth control measures that inhibit implantation:

(1) Once the fertilized egg has divided, there is a chance -- however small -- that this will result in a new human life, and this is incredibly precious Folks believing this should immediately sell all their worldly goods and donate the proceeds to relief in Darfur, where EXISTING human life is in intolerable suffering.

(2) Once the egg is fertilized, it has a soul attached to it, and it is therefore human. Folks who believe this should contemplate the probability that 80% of fertilized eggs never prosper, even in the absence of birth control, and perhaps ask themselves where those souls go.

[unitron]

Is the question when does human life began, or when does pregnancy begin?

If the fertilized egg has an absolute right not to have any externally originated barriers to implantation, does this mean that the society which prevents a woman from using an IUD can also demand that everything about her life be manipulated to prevent, as much as possible, any "naturally" occuring obstacles to implantation? Can the woman be held hostage to lifestyle and diet choices which maximize the chances of implantation of a fertilized egg which may or may not come into existance?

What will be the rational for telling a woman who does not have sex that she still cannot decide to have an UID inserted if she wishes (for whatever non-contraceptional reason she may have)? That it violates the rights of any fertilized egg that might come about as the result of her having been raped?

[TheViewFromCydonia]

And, what does this same rationale do to the right to have a vasectomy?

After all, vasectomies surely violate the right of any deserving, soul-seeking egg to be fertilized..

[unitron]

Ain't it amazin' how them slippery slopes never lack for ever-increasing lubrication?

[mirrimatmlw]

Good analysis, except for one thing.

Women don't die from infection with ectopic pregancies. They die from internal hemorrhage, since the placental tissue erodes through the tube and bleeds into the abdominal cavity.

I would also dispute HHS's implication that fertilization as equal to "conception" is recognized by the bulk of medical experts in the field. Considering that between one fifth and one quarter of all clinically recognizable pregnancies (post-implantation, positive pregnancy test) end in spontaneous losses, in many of which no embryo ever develops, and that the data from in vitro fertilization show that as many as two-thirds of all fertilized eggs never produce a viable baby, much less a positive pregnancy test, I would say that most practicing OB-GYNs would say it isn't.