The new Supreme Court decision in Dobbs overrules the right to abortion but repeatedly reaffirms the right to contraception. Whether that distinction can be justified under the Court opinion’s constitutional methodology has been the subject of much critique. Here, however, I wish to focus on a different question: just where is the new constitutional line between abortion and contraception after Dobbs?
The dissent takes the Court opinion to eliminate any constitutional right “from the very moment of fertilization.” But the Court opinion never says so, and for good reason. The Court’s analysis rests heavily on the fact that the lion’s share of states banned abortion “at all stages of pregnancy” at the time the Fourteenth Amendment was ratified in 1868. The state statutes on which the Court relied for this conclusion were all limited to terminations of “pregnancy” or efforts to procure the “miscarriage” of a pregnant woman.
Pregnancy does not begin at fertilization. Medically, pregnancy instead begins when a fertilized egg is implanted in the womb. This is not just a modern medical understanding. Webster’s 1828 dictionary defined “pregnancy” as “The state of a female who has conceived, or is with child,” and it defined “conceive” as “To receive into the womb, and breed; to begin the formation of the embryo or fetus of animal.” It thus indicated that pregnancy begins with implantation. Likewise, this 1828 dictionary defined “miscarriage” as “Abortion; the act of bringing before the time,” and defined “abortion” as “The act of miscarrying, or producing young before the natural time, or before the fetus is perfectly formed.” Preventing a fertilized egg from ever implanting does not produce young before the natural time and thus does not count as a miscarriage. The historical abortion statutes on which the Court relied thus provide no basis for denying a right to medical interventions that prevent fertilized eggs from becoming implanted. (Some modern state statutes have defined pregnancy to begin at fertilization, but that is not relevant to the historical point regarding how the terms would have been understood in 1868.)
This conclusion is also consistent with the Dobbs Court’s repeated reaffirmance of the constitutional right to contraception. Although contraception sometimes works by preventing an egg from ever getting fertilized, contraception often works by preventing a fertilized egg from implanting, such as with the IUD. The word “contraception” is in fact defined as the “deliberate prevention of conception or impregnation.” The right to contraception that the Court continues to recognize would thus conflict with a state power to interfere with any medical intervention that prevents implantation of a fertilized egg. The Hyde Act seems to recognize the same distinction, denying federal funding for abortions, but not for “drugs or devices to prevent implantation of the fertilized ovum.”
One might try to argue to the contrary that the Supreme Court cases establishing a right to contraception all involved statutes that prohibited drugs or devices to prevent “conception.” But “conception” itself is defined as “the process of becoming pregnant involving fertilization or implantation or both.” Those statutes thus applied to contraceptives whether they prevented fertilization or implantation. Further, the Griswold case involved the conduct of prescribing for each woman the “best contraceptive device” for her situation, and thus did not limit the types of contraceptives to which the right applied.
How then to square the above distinction with the Court’s repeated claim that the difference between abortion and contraception is that only the former involves a “potential life”? After all, a fertilized egg has some potential to become alive. But that potential is limited by the fact that, even without any contraception, one-third to one-half of fertilized eggs never implant, and even if they do, half the implanted eggs naturally miscarry. Nor can the Court mean that eliminating any potential to become alive is constitutionally unprotected because even forms of contraception that prevent the fertilization of an egg prevent the creation of potential lives with significant odds. The odds of a healthy woman becoming pregnant from unprotected sex on the day of ovulation are 33%, and those odds only get higher from repeated sex on the days before ovulation or in repeated months. Since the Court recognizes a right of contraception, it thus cannot mean anything that eliminates any potentiality of life. It must rather mean the higher odds of potential life that are created once a fertilized egg is implanted and pregnancy begins.
The above analysis indicates that the use of IUDs remains constitutionally protected even though it acts after the fertilization of an egg, as does any other contraceptive that operates in the 8-18 days between fertilization and implantation. The above analysis also addresses another issue the dissent raised, which was whether a state could criminalize the use of in vitro fertilization because it involves discarding unused fertilized embryos. The answer is no because those embryos are discarded before implantation, and thus their discard does not count as the abortion of a pregnancy, and the right to procreate (which the Dobbs Court reaffirmed) would seem to provide a right to use in vitro fertilization in order to procreate.
Einer Elhauge is the Carroll and Milton Petrie Professor of Law at Harvard University
