Wednesday, May 3, 2006

Shifting sands: Pill pressure and reproductive rights

Published in the Portland Phoenix

Reproductive rights are a moving target. No matter what decisions are made by the courts, Congress, or state legislators, birth control and reproductive rights are at the nexus of public policy, individual privacy, health-care regulations, ethical arguments, religious beliefs, and morality. As individual and societal interpretations of and positions on all of those elements shift with time, so will the laws, guidelines, rules, and social “acceptability” of a spectrum of options available to women, and more recently, men, regarding their rights and obligations, their desire and ability to bear children — or not — in the ways they want.

Thirty-five years ago, in 1971, the US Supreme Court issued its first-ever ruling on the subject of abortion, upholding a District of Columbia law allowing an abortion to protect the life or health of the mother. The court’s ruling in the case, United States v. Vuitch, held not only that abortions were legal, but that the word “health” in the law “includes psychological as well as physical well-being,” effectively opening a door to any woman who wanted to have an abortion.

But the fact that most states outlawed abortion except in cases where the mother’s life was at risk — even if her health would have been damaged in some way, so long as she survived — made the Vuitch decision a key component in the Roe v. Wade arguments and decisions. The ruling, handed down just eight months before the December 1971 first round of oral arguments for Roe, was the subject of much discussion between the attorneys and the justices, and figured prominently in both rounds of oral arguments for Roe (the second held in October 1972). (Vuitch was, in fact, the subject of the first question from the bench in the second round, according to official transcripts of the event.) And the Vuitch ruling draws together the legal framework for arguing that a fetus is not a “person,” as intended in the Fourteenth Amendment, which prohibits depriving a person of “life, liberty, or property without due process of law.”

That argument was later expanded upon in the Roe decision, in which the Court noted that all of the references to “person” in the Constitution are to people who have been born already — not to the unborn.

At this very moment in the decision, however, just as the fetus-as-non-person argument was hitting its stride, its one weakness is also revealed: if a fetus were somehow to be included in the legal definition of “person,” its right to life would be guaranteed by the Fourteenth Amendment.

Until Roe, however, women had to travel from one state to another to find places to procure abortions legally. Now, with the confirmations of Chief Justice John Roberts Jr. and Associate Justice Samuel Alito widely expected to result in a reversal of Roe, and with Planned Parenthood conducting a “Save Roe” campaign and the National Pro-Life Alliance sending mailers around the nation seeking donations to “reverse Roe v. Wade,” women are seeking secure ways to exercise control over their bodies, their lives, and their futures.

One of those methods, and the most common for women to use, is birth-control pills. (For men it is condoms.) The Pill is usually made with estrogen taken from the urine of pregnant horses, though it’s also manufactured with synthetic versions of that hormone and a related hormone, progesterone. Clinical studies show that the Pill (or really, the many variations on it) is between 92 and 95 percent effective in preventing pregnancy.

The Pill’s various side effects include some “desirable” ones, such as regulating the timing and quantity of menstruation, preventing acne and other skin problems, and, in some cases, reducing the risk of breast diseases, ovarian cysts, and uterine cancer.

But the Pill is not an easy answer. Taking it has medical risks, for which there are voluminous pages of warnings issued with every filled prescription. More than that, though, the Pill does not allow its users to avoid complicated questions about lifestyle, health, future, and morality. And in some cases, the Pill brings those questions closer.

In the past year, several lawsuits have been filed against the manufacturers of Ortho-Evra, a birth-control medication administered through a medication-infused patch that stays on a woman’s skin for weeks at a time, instead of being administered by daily doses of the Pill. The suits have generally alleged that the patch unacceptably increased the risk of stroke in women using it as a form of birth control, and allege that in as many as 20 cases the patch caused the death of a woman on the patch. (The patch’s manufacturer, a subsidiary of Johnson & Johnson, has denied knowledge of problems with the patch, though that denial has come under fire as a result of the discovery, in lawsuits, of internal company documents some say refute it.)

Earlier this year, a Michigan man filed a federal lawsuit effectively seeking the right not to be a father. According to the lawsuit, Matthew Dubay was in a relationship with a woman during which he was very clear to her that he did not ever want to be a father or have children. The woman allegedly told him that she was infertile and using contraception (though what kind is not laid out in the suit, some news reports have assumed she was on the Pill). But the woman got pregnant all the same, and carried the baby to term. She then sought a court order for child-support payments, which Dubay is fighting, arguing that he deserves an analogous right to her unilateral right to choose whether or not to have an abortion. That is, he is seeking the right not to be a father, in a case that is being called “Roe v. Wade for men,” just proving that no matter how much — or how little — is ever actually “settled,” there’s always more to talk about, argue about, and figure out.

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