WSJ: Morning-After Pill Reshapes Debate Over Abortion (and Scalito)

Morning-After Pill Reshapes Debate Over Abortion

Courts, Legislatures Tackle Emergency Contraception; Tough Questions for Alito
By JEANNE CUMMINGS
Staff Reporter of THE WALL STREET JOURNAL
January 9, 2006; Page A3

The abortion debate in America's courts is shifting into new medical and legal terrain, thanks to the escalating battle over the so-called morning-after pill, and it is likely to become an issue in Supreme Court nominee Judge Samuel Alito's confirmation hearings, which start today.

The controversy hinges on one of the most elemental questions in the debate: when pregnancy begins. Judge Alito's writings include remarks that suggest he believes pregnancy starts at the fertilization of an egg. That differs from the medical community's position that pregnancy begins when a fertilized egg implants itself in the wall of a woman's uterus.

The distinction is of immense importance in an emerging battle between religious conservatives and some women's groups over access to emergency contraception. If the 1973 Supreme Court decision in Roe v. Wade kicked off the legal fight over abortion, emergency contraception is its future. Some Illinois pharmacists have brought suit against a state requirement that pharmacies that sell birth-control pills must fill prescriptions for emergency contraceptives. Some legislatures, meanwhile, are passing laws to make the morning-after pill more accessible, while others are moving to allow pharmacists to refuse to dispense it. Judge Alito, should he win Senate confirmation, will be at the front lines of those battles. Already, one of the rulings from his tenure on the Third Circuit Court of Appeals is figuring prominently in the Illinois pharmacists' lawsuit.

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Comments in a memo written by Judge Alito in 1985, when he worked in the U.S. solicitor general's office, have set off alarms among abortion-rights advocates because it describes some birth-control methods -- which Judge Alito didn't specify -- as "abortifacients." The term means that a birth-control method doesn't simply prevent pregnancy but is tantamount to abortion, because it interferes with implantation of a fertilized egg in the uterine wall.

Chemically, the morning-after pill works much like common birth-control pills and can prevent pregnancy at several stages. It can slow ovulation, immobilize or otherwise prevent semen from reaching the egg, and interfere with a fertilized egg's ability to implant in the wall of the womb. Studies have shown that once an egg has become embedded in the uterine wall, the medication has no effect. That distinguishes the morning-after pill from mifepristone, the abortion pill formerly called RU486, which is also available under a doctor's care.


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Write to Jeanne Cummings at jeanne.cummings@wsj.com

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