When States Regulate Emergency Contraceptives Like Abortion, What Should Guide Disclosure?

15 Pages Posted: 1 Dec 2017

See all articles by Cameron O'Brien Flynn

Cameron O'Brien Flynn

Government of the State of California - The State Bar of California

Robin Fretwell Wilson

University of Illinois College of Law

Date Written: November 29, 2017


Between 2011 and 2013, state legislatures enacted 205 abortion laws — 16 more than in the entire decade before. Most laws take direct aim at surgical abortions, although some also target chemical abortions that use drugs like RU-486, a common chemical abortifacient sold under the trade name Mifeprex.

A crop of new state laws focus on what information abortion providers must give women about the procedures or drugs they seek. In the most controversial iteration of these “informed consent” statutes, abortion providers must “perform an ultrasound on each wom[a]n seeking an abortion and… show and describe the image” (the “speech and display provisions”). Some state laws regulating chemical abortions also force particular disclosures to women when receiving such drugs.

Little noticed in the recent flurry of state abortion laws is the fact that some laws regulating abortions ensnare emergency contraceptives (“EC”), like ella, taken in the hours and days after unprotected sex to reduce the chance of pregnancy. There are two common forms of post-coital contraception — Plan B, which is effective up to 72 hours following unprotected sex, and ella, which is effective up to 120 hours following unprotected sex. Only ella has been demonstrated to work after fertilization, implicating state abortion laws.

A growing number of states deliberately regulate access to EC in their health and safety codes. Far less appreciated is the fact that state laws designed with chemical abortions in mind may also encompass EC, whether deliberately or because of sloppy drafting. These laws place safety and disclosure obligations on providers that may map well to the risks posed by RU-486, but are misplaced for the risks posed by certain forms of EC, like ella. Courts have grappled with the constitutional permissibility of mandated disclosures and the related question of what disclosure is due to women seeking abortions under the common law duty of informed consent. In both contexts, courts place significant weight on what health care professionals believe is true about an abortion procedure and its attendant risks, emphasizing “standards of acceptable and prevailing medical practice.” Ironically, given the nexus to a woman’s decision making, courts fail to ask what women themselves would want to know about the risks, assuming a clear picture of risks could be fashioned.

This Article seeks to connect the science surrounding EC and its probable mechanisms of action to state regulation of surgical and chemical abortions, including mandated disclosures. Although courts give significant weight to professional norms about disclosure, we argue that the values that women themselves bring to the decision to use EC should be paramount.

Suggested Citation

O'Brien Flynn, Cameron and Wilson, Robin Fretwell, When States Regulate Emergency Contraceptives Like Abortion, What Should Guide Disclosure? (November 29, 2017). Journal of Law, Medicine and Ethics Symposium: Free Speech and the Regulation of Reproductive Health, Spring 2015. Available at SSRN: https://ssrn.com/abstract=3079925

Cameron O'Brien Flynn

Government of the State of California - The State Bar of California

United States

Robin Fretwell Wilson (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217.244.7582 (Phone)

HOME PAGE: http://www.robinfretwellwilson.org

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