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Restricting access to Emergency
Contraception (EC) in Wisconsin

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Do people have the right to privacy -- freedom from government intrusion?:

In the past, a majority of justices on the U.S. Supreme Court have interpreted the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution " placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice and liberty" to all U.S. citizens. 1 The Court ruled that the due process clause implies that governments cannot pass legislation that intrudes too deeply into the personal life of its citizens. That is, there are limits to the ability of states to control personal behavior.

The concept of personal privacy from government oppression began in 1961 with the case of Griswold v. Connecticut. Estelle Griswold, then executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton of Yale Universityís Medical School, opened a small birth control clinic in downtown New Haven, CT. They were arrested within days on a charge of dispensing contraceptives to a married couple -- a criminal offense at the time. The defendants were found guilty and fined $100 each. They appealed their conviction, and, in 1965, their case reached the Supreme Court. Seven out of nine judges "agreed that a zone of privacy protecting birth control inheres in what the justices variously called a 'penumbra' (a shaded rim between darkness and light) of the Constitution or in 'emanations' from specific provisions in the Bill of Rights, such as protection from unwarranted search and seizure. In other words, although the Constitution and the Bill of Rights do not explicitly guarantee privacy rights to individuals, such rights were said to be implicit within them." 2

During 1972, the Supreme Court confirmed the right to privacy in another lawsuit: Eisenstadt v. Baird. It gave unmarried women legal access to contraceptives. Under the 14th amendment, the U.S. Supreme Court has "...recognized such rights and the right to an early abortion, the right to use contraceptives, [and] the right to medical treatment..." 3 For opposite-sex couples, the court has also recognized "...the right to marry." 3 In mid-2003, the court based its Lawrence v. Texas ruling on the right to privacy. That decision gave both heterosexual and homosexual adults the right to engage in private consensual sexual activities, even if most people would consider their behavior immoral. The state cannot intrude into the bedrooms of the nation, and impose the majority's moral beliefs on the entire public.

However, the right to privacy is not explicitly stated in the Constitution. Thus most, if not all, strict constructionist jurists do not recognize this right. If the majority of justices are or become constructionists, then laws outlawing access to contraceptives, prohibiting access to abortion, criminalizing any sexual or other behavior that a legislator feels is immoral, etc. would probably be declared constitutional. A constructionist majority is a distinct possibility because of the 2005-JUN resignation of Justice Sandra Day O'Connor and the expected resignation of Chief Justice William Hubbs Rehnquist.

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"University of Wisconsin Birth Control Ban:"

Representative Daniel LeMahieu (R-Oostburg) introduced Assembly Bill 343 into Wisconsin's lower chamber. It is called the "UW Birth Control Ban." He was motivated by news that a University of Wisconsin-Madison student health clinic had published advertisements in the campus newspaper suggesting that female students avoid unwanted pregnancies during spring break by obtaining emergency contraception [EC] medication in advance. That way, if they are raped, or if they engage in consensual sex and the condom breaks, they will have EC on hand to prevent a pregnancy. On spring break, they might well be out of state and not have rapid access to a physician.

LeMahieu believes that the ads encourage reckless behavior with an "it's OK because everybody does it" attitude. [That ad told them] 'We expect you to be irresponsible on spring break. So, come to us and we'll help you be prepared and we'll help you plan ahead.' That's the wrong message to send to our young people."

Representative Therese Berceau, (D-Madison) responded by saying: "This is what I'm now calling the 'stork theory of reproduction' that the Republicans are pushing. They would prefer to believe that if we just tell people not to have sex, they won't have sex. And maybe people will then also believe that babies come from the stork."

Kathleen Poi, the clinic's executive director, said: "These are the types of ads that we've done for a number of years to get students to think about having a safe and relatively healthy spring break." She added that the information on EC simply acknowledges that accidents can happen. "When a student is here in Madison, they know what their resources are. So if, on Saturday night, the condom breaks, on Sunday they can call and get a prescription for emergency contraception. When they're in Florida, and that same thing happens, they can't." 4

LeMahieu commented: "Are we going to change the lifestyle of every UW student? No. But we can tell the university that you are not going to condone it, you are not going to participate in it, and you are not going to use our tax dollars to do it."

Opinions differ about the nature of EC:

bullet LeMahieu has stated that, in his opinion, EC can cause abortions. He apparently agrees with a belief among most pro-lifers that pregnancy starts at conception. EC generally inhibits ovulation or prevents conception. However, under some circumstances, EC can cause a fertilized ovum -- a pre-embryo -- from becoming implanted in the uterus. They believe that EC can be an abortifacient.
bullet Most pro-choicers and physicians define pregnancy as starting when the pre-embryo is implanted in the inner wall of the uterus. EC has no effect once pregnancy has begun. Thus, it is not considered an abortifacient.

The bill would prohibit any University of Campus medical facility from advertising, prescribing or dispensing EC. However, the bill is worded so generally, that it might also prohibit birth control pills.

Democratic representatives have said that the bill would deny rape victims a chance to prevent pregnancies. They predicted that the bill would increase the number of unwanted pregnancies and thus increase the number of abortions. They also say that the bill is unconstitutional. If passed, it could prohibit the dispensing of all oral contraception. Representative Marlin Schneider (D-Wisconsin Rapids) said: "Apparently some in this body want to take us back to the time when the dispensing of contraception was a criminal act....[This is] a direct frontal assault on the right to privacy, on the right of free speech, on the right of a free press."

Many representatives were faced with a conflict. They had given an oath of office in which they promise to uphold the constitution. The Supreme Court clearly defines a right of privacy to include access to birth control. But many legislators felt an overriding need to prevent university students from having access to pregnancy protection in case of rape or contraceptive failure. For most, their desire to intrude on the lives of students outweighed the importance of their oath of office. The bill passed the Assembly by a vote of 49 to 41 on 2005-JUN-17.

Matt Sande, director of legislative affairs for Pro-Life Wisconsin, said: "This is common-sense legislation, and we thank Representative LeMahieu for his courageous determination in moving the bill forward. Last night's vote in the Assembly is proof that Wisconsinites do not want their publicly funded universities involved in the potential destruction of innocent human life or exposed to lawsuits brought by young women who have suffered serious side effects from the morning-after pill."

The bill is now before the state Senate which, like the Assembly, is controlled by Republicans. Senator Glenn Grothman (R-West Bend) is the lead author. If the bill is signed into law by the governor, it would be the first of its kind in the U.S. The state of Virginia had considered, but rejected, similar bills in the previous two years. There is speculation that Governor Jim Doyle (D) would veto it if it arrives on his desk. 5,6,7,8

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Due process," The Free Dictionary, at:
  2. Ellen Chesler, "Why the Right to Privacy May Be Taken Away by a New Supreme Court," History News Network, 2005-JUL-25, at:
  3. "Encyclopedia: United States Constitution/Amendment Fourteen,", at:
  4. Phil Brinkman, "Bill will try to bar UW from giving out pills," Wisconsin State Journal, 2005-MAR-21, at:
  5. "Wisconsin Assembly Passes Ban On Morning-After Pill. Restriction would be the first of its kind in the U.S.," MTV TV, 2005-JUN-17, at:
  6. Steven Ertelt, "Wisconsin Assembly Says No Morning After Pills at Universities,", 2005-JUN-17, at:
  7. "Wisconsin Assembly Passes Morning-After Pill Ban on UW System Campuses," ProLifeBlogs, 2005-JUN-17, at:
  8. Ryan J. Foley, "Wisconsin May Ban Morning-After Pill," Associated Press, at:

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Copyright © 2005 by Ontario Consultants on Religious Tolerance
Originally posted: 2005-JUL-19
Latest update: 2005-JUL-19
Author: B.A. Robinson

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