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With Roe overturned, is Plan B still legal in Michigan?

An emergency contraception pill.
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502885206
An emergency contraception pill.

Following the ruling of Dobbs v. Jackson, there are many questions about abortion rights and access to birth control in Michigan. One of those questions is about Plan B, the emergency contraception pill that may, according to the FDA, stop a fertilized egg from implanting, therefore preventing pregnancy. But there is a lot of research suggesting Plan B does not prevent implantation.

Here's what you need to know:

Now that Roe v. Wade has been overturned, is Plan B now illegal in Michigan?

The short answer: no. Even if Michigan’s 1931 law that outlaws abortion in nearly all circumstances stands (that question is currently before the courts), the state statute criminalizing abortion does not criminalize Plan B, which is not an abortion drug.

People are often confused by this, even some who support abortion rights. There are two drugs, mifepristone and misoprostol, that when taken together do cause abortion. That’s commonly referred to as “medical abortion.” Plan B, on the other hand, is an emergency contraceptive that consists of the synthetic hormone levonorgestrel. That’s the same hormone used in ordinary birth control pills. Women can use it as a backstop to prevent pregnancy if they’ve had unprotected sex, or sex where other contraceptive methods fail.

According to the FDA, Plan B works “primarily by stopping the release of an egg from the ovary (ovulation). It may prevent the union of sperm and egg (fertilization). If fertilization does occur, Plan B may prevent a fertilized egg from attaching to the womb (implantation). If a fertilized egg is implanted prior to taking Plan B, Plan B will not work.”

The FDA claim that Plan B may prevent implantation is challenged by many researchers, but is not part of the current debate over its potential legality in Michigan.

The legal decision is made because Plan B is not abortion, because it does not cause an implanted, fertilized egg — a zygote or fetus — to be expelled. It’s an emergency contraceptive meant to prevent pregnancy. So it would not be considered abortion under Michigan’s abortion statute, and would remain legal.

Concerns about privacy rights as the cornerstone for legal birth control

But that’s not the end of the story. While no one from any political persuasion is claiming that Plan B is now illegal, some abortion rights advocates think the Roe decision puts it — and possibly other contraceptives — on shaky legal ground.

A 1965 U.S. Supreme Court decision, Griswold v. Connecticut, legalized the use of birth control between married couples. Its legal cornerstone was a constitutional right to privacy, based in large part on 14th Amendment protections. This set a precedent that led to the Roe decision and, later, the right for same-sex couples to marry. However, in the Dobbs opinion that overturns Roe, Justice Samuel Alito scorned that reasoning, and the idea of a right to privacy — though he went out of his way to say that his reasoning applies only to abortion, and not to other privacy-based rights.

That contention “is just laughably disingenuous,” said Anna Kirkland, director for the Institute for Research on Women and Gender at the University of Michigan. “Clearly the way he wrote the opinion leaves it open to striking down all the right to privacy cases, which include those ones currently protecting contraception.”

And while Kirkland agrees that the demise of Roe and the possible revival of Michigan’s 1931 abortion statute shouldn’t affect Plan B in any way, she worries that it could still affect access to it. “Would pharmacists or people who fill Plan B think that it is illegal under the 1931 law erroneously?” Kirkland said. “Just genuine misinformation could be a problem.”

Anti-abortion groups are also making it clear that in their minds, the fall of Roe doesn’t impact Plan B. That includes the Michigan Catholic Conference, which has fought court cases arguing that employers should not have to cover employee birth control on insurance plans.

“Michigan Catholic Conference’s past advocacy regarding contraceptives has been defensive – we have sought to oppose state and federal efforts to require religious employers to pay for or provide contraceptives in their employee medical plans,” spokesman David Maluchnik said in an email. “MCC has never sought to prohibit contraceptive use among the general public in state law.” He added quotes from U.S. Supreme Court justices Neil Gorsuch and Amy Coney Barrett that appeared to scorn the claim that the fall of Roe cuts into the legal bedrock on which legal birth control rests, including Coney Barrett’s assertion that any federal or state law challenging it seems “shockingly unlikely.”

Perhaps so. But in a separate opinion concurring with Dobbs, Justice Clarence Thomas seemed to signal otherwise. Thomas suggested that “in future cases,” the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence [legal protections for same-sex relationships], and Obergefell [same-sex marriage].”

“That’s DNA, man”

Overall, anti-abortion groups appear to be treading this legal line carefully, and for now putting out clear signals that doing away with legally-protected birth control is not on their agenda. If overturning the right to legal abortion is already unpopular with the American public, doing the same to birth control would be “seismically unpopular,” noted Kirkland. “Practically every person that could become pregnant has used some form of birth control. Whatever a person’s religion or political orientation, people widely use birth control and rely on it.” She noted that Oklahoma, which recently passed a law outlawing abortions and declaring that life begins at fertilization, specifically exempted Plan B and other forms of birth control from that definition.

However, it doesn’t appear that all politicians have gotten the message. Garrett Soldano, the Kalamazoo chiropractor seeking the GOP nomination for Michigan governor, recently made some statements suggesting that for him, Plan B can sometimes be the equivalent of abortion.

According to video obtained by Heartland Signal, Soldano gave a medically nonsensical response that Plan B can only be used if conception — by his definition, fertilization — doesn’t happen. “Now, if you can prove that conception didn’t happen, you can use it,” declared Soldano. “Fine, it’s like contraception to me. But as soon as that joins, it’s over. That’s DNA, man.”

UPDATE: This story has been updated to more precisely reflect the FDA's assertion that Plan B may prevent implantation, but that many researchers disagree with that claim. An earlier version of this story said Plan B can prevent implantation. Some read that to mean it will prevent implantation, which is not what we meant. We have used the exact wording from the FDA for this story, and also noted the controversy over that wording and provided additional links to research and articles.

Sarah Cwiek joined Michigan Radio in October 2009. As our Detroit reporter, she is helping us expand our coverage of the economy, politics, and culture in and around the city of Detroit.