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June 17, 2022

Is Plan B still legal? In some states, confusion abounds.

Daily Briefing

    In Dobbs v. Jackson, the Supreme Court held that emergency contraceptives like Plan B do not involve "the destruction of what Roe called 'potential life,'" and are not affected by the court's ruling that overturned the constitutional right to abortion—but "the ambiguity of the law" and uncertainty around what it prohibits continues to cause confusion on whether Plan B can be legally accessed in certain states. 

    Check out our new resource page for post-Roe implications for health care

    SCOTUS's ruling does not restrict access to contraceptives

    Last month, the Supreme Court voted 6-3 to overturn the 1973 Roe v. Wade decision and the 1992 Planned Parenthood v. Casey decision, eliminating the constitutional right to an abortion and leaving the legality of abortion up to individual states.

    In the majority opinion, Justice Samuel Alito clarified that the case would only impact abortion access. "To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right," Justice Alito wrote. "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

    However, after Justice Clarence Thomas suggested the court "reconsider" access to contraception, many people who can become pregnant started stockpiling morning-after pills, like Plan B, over concerns that access to emergency contraception will also be restricted.

    Currently, Plan B is considered the "gold standard" of treatment for rape victims who visit the ED for medical care, said Michele Goodwin, a chancellor's professor of law at the University of California, Irvine.

    According to the Guttmacher Institute, 20 states and the District of Columbia currently require hospital EDs to provide information about emergency contraception to sexual-assault victims.

    However, at least 12 states allow some health care providers, including doctors, hospitals, and pharmacists, to deny treatment for patients seeking contraceptive services, including Plan B. 

    'Ambiguity of the law' is causing confusion for some providers 

    While morning-after pills work differently than abortion pills—which terminate a pregnancy after an egg has implanted in a pregnant person's uterus—some legislators have used the Supreme Court's ruling to consider restricting access to emergency contraception, Insider reports. In addition, ambiguous laws have led to confusion in many states where abortion is now illegal.

    For example, Saint Luke's Health System in Missouri—a state where abortion is illegal—on Tuesday announced that it would stop providing emergency contraception until state and federal laws "better defined" the abortion ban. 

    "The Missouri law is ambiguous but may be interpreted as criminalizing emergency contraception," said Laurel Gifford, a spokesperson for the health system. "To ensure we adhere to all state and federal laws — and until the law in this area becomes better defined — Saint Luke's will not provide emergency contraception at our Missouri-based locations," Gifford added.

    Then, on Wednesday, Chris Nuelle, a spokesperson for Missouri Attorney General Eric Schmitt, clarified that Missouri law "does not prohibit the use or provision of Plan B, or contraception."

    After receiving clarification, Saint Luke's on Wednesday announced that it would continue providing emergency contraceptives to patients.

    "However, the ambiguity of the law, and the uncertainty even among state officials about what this law prohibits, continues to cause grave concern and will require careful monitoring," the health system said. (Hawley, "Shots," NPR, 6/29; Bansinath, The Cut, 6/29; DePeau-Wilson, MedPage Today, 6/30; Munce, Texas Tribune, 6/24; Michelson, Insider, 6/28)

    The business implications of overturning Roe v. Wade

    Access our new resource library

    physiciansThe recent Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization has triggered a cascade of uncertain consequences for health care leaders and the patients they serve.

    Going forward, our research teams will be updating this new resource page with helpful analysis and deep dives, including: 

    Access now

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