When Does Pregnancy Begin?: A Federal Appeals Court Decision Implicates a New Abortion Question

By SHERRY F. COLB

Monday, Oct. 15, 2007

Recently, the U.S. Court of Appeals for the Third Circuit dismissed a federal lawsuit brought by the parents of a 16-year-old girl, on their own and on their daughter's behalf, against the city of Philadelphia and its agents, including a health center operated by the city's Department of Health. The plaintiffs in Anspach v. City of Philadelphia alleged that at the girl's request, the health center gave her a "morning after" pill, but without notifying her parents and without informing her that the medication could prevent a fertilized egg from implanting inside her uterus. Her parents contend that this information would have been of great significance to all three of them, because the prevention of implantation constitutes an abortion according to their religious beliefs.

As I will explain, this case was rightly dismissed. It nonetheless raises a question of potentially great significance: When does pregnancy begin? The answer to this question will determine whether courts should classify the morning-after-pill as preventing, or as terminating, a pregnancy. Moreover, to the extent that the U.S. Supreme Court has become more receptive to government restrictions of abortion, the official point at which pregnancy begins could prove crucial in defining the scope of women's continuing reproductive autonomy.

Why the Court Was Right to Dismiss the Suit

The plaintiffs based their suit upon a claimed constitutional violation: They alleged that provision of the morning-after-pill without parental involvement, and without notice of its potential for interfering with an existing pregnancy, violated their and their daughter's constitutional liberty rights under the Due Process Clause, as well as their rights to religious freedom under the First Amendment. The Court dismissed the claims of federal constitutional violation. Because the plaintiffs had alleged state law claims as well, the court remanded those claims to state court, where the suit had originated.

The Court of Appeals was undoubtedly correct to dismiss all of the federal claims. To begin, no precedents state or imply that parents have a constitutional right to be notified before their daughter can receive contraception, under either the First Amendment or the Due Process Clause. The health center did not interfere with the girl's ability to contact her parents, an interference that could have raised constitutional objections. Instead, the center simply did not require the girl to tell her parents if she preferred not to tell them.

Furthermore, no one misled the girl about the morning-after-pill. The Food and Drug Administration (FDA) considers it a contraceptive that does not disrupt or harm an existing pregnancy. The information the girl received was therefore accurate, and in no way coercive.

The Morning-After Pill and the Surrounding Debate

In debates about abortion, the distinction between contraception (which prevents a pregnancy from beginning) and abortion (which terminates an extant pregnancy) receives a great deal of attention. Some religious proponents of the pro-life position, such as the Catholic Church, take the view that it is wrong to separate sex from procreation (through contraception, through non-sexual reproductive technologies, or through non-procreative forms of sexual interaction). Nonetheless, few people have argued publicly that the use of a condom is tantamount to murder. Most draw a clear line between pre-pregnancy and post-pregnancy intervention in reproduction. And importantly, what designates this line for the pro-life advocate is the moment of conception, when sperm and egg merge to form a zygote.

From a medical point of view, however, pregnancy does not occur at the moment of conception. It occurs, instead, when an embryo (a fertilized egg that has divided over the course of a few days) attaches itself to the woman's uterus, a stage known as implantation. It is at implantation that a woman's hormonal system begins to respond to her embryo, a response that initiates a cascade of dramatic physiological changes in her body. This means that if a sperm fertilizes an egg after a couple has intercourse, but the fertilized egg never implants inside the woman's uterus, then the woman - from a medical point of view - was never pregnant. Therefore, she can be described as having menstruated, rather than as having experienced a miscarriage or a spontaneous abortion.

Some forms of what we call birth-control implicate the distinction between the pro-life definition of pregnancy and the medical definition of the same. For example, the I.U.D. (or intra-uterine device) can operate by preventing a fertilized egg from implanting in the wearer's uterus (though it can also work by preventing conception in the first place). When it prevents implantation, an I.U.D. has - necessarily - not prevented conception (and, if I were a pro-life advocate, I might accordingly say that in such instances, it does not literally fit the definition of "contra-ception").

The morning-after pill is similar. It alters the hormonal environment inside a woman's body in a manner that can operate either to delay ovulation, to prevent the sperm cells (already present inside the woman - hence the "morning-after" moniker) from reaching an egg, or to prevent an already-fertilized egg from being able to implant itself inside the woman's uterus. In other words, the morning-after pill can, indeed, potentially terminate the "life" of a zygote.

When Pregnancy Begins

One reason the Court of Appeals in Anspach was able to dismiss the family's federal claims was that the FDA (and the medical profession) define pregnancy as commencing at the point of implantation, not at the moment of conception. Telling the girl that the pill would prevent (rather than terminate) a pregnancy was therefore accurate. However, the fact that medicine defines a pregnancy as beginning at implantation does not necessarily provide guidance on the issue of when pregnancy begins from an ethical standpoint. If states are some day permitted to regulate abortion but not contraception, it would be useful to know whether the relevant moral line is conception, as most people in the pro-life movement believe, or implantation, as medical professionals do.

Is there any reason to view implantation, rather than conception, as the morally relevant moment for purposes of saying whether an abortion has taken place? Consider the case of in-vitro fertilization. A woman has her egg harvested for fertilization by a man's sperm cells in a test-tube. Conception takes place. Notwithstanding conception, however, no one, at this point, can be said to have become pregnant.

The fertilized egg might be introduced into the egg donor or into a different woman for implantation. Alternatively, it could be allowed to expire in the test-tube. In the first two cases, if implantation occurs, then the egg donor or the other woman, respectively, will have become pregnant. If one of the pregnant women, moreover, decides to terminate her pregnancy, it will be she (not the other woman) who will have had an abortion, regardless of whose ovum was fertilized to form the initial zygote. And if the doctor who brought the sperm and egg together in a test-tube allows the resulting embryo to remain there and expire, then there will be no abortion to speak of, despite the death of a fertilized egg. Knowing that someone has "killed" a fertilized egg or an embryo, in other words, does not tell us who has had an abortion, or indeed whether anyone has had an abortion at all.

Most of the time, of course, conception occurs inside a woman's body, rather than in a Petri dish. Nonetheless, the in-vitro example exposes the inherent distinction between a zygote's coming into existence and its connection to a woman who might then carry it for nine months.

If the morning-after pill interferes with implantation, it does so by preventing a woman's uterus from developing in the way necessary to prepare it to become receptive to implantation. It would seem odd to describe this as "aborting" -- or, indeed, as doing anything directly to -- the fertilized egg or embryo.

By not having an embryo inserted into her body in the first place, a woman in the in-vitro context does the same thing. She is either receptive to the embryo's implantation (which, in the case of an in-vitro fertilization, involves inserting the embryo into her body, and in the case of an in vivo fertilization, involves proceeding with her menstrual cycle) or she is not. If she is not receptive, then it seems arbitrary to call that an abortion in either one of the two cases.

Religious Definitions: Acts and Omissions

I do not aim here to persuade a pro-life advocate to take the view that the morning-after-pill is not an abortifacient, for religious purposes. Such an objective would be beyond the scope of anyone's legal training.

Religion and morality are not identical, however. In religion, one typically has obligations and burdens that, if not performed, constitute sins that can be as great as or greater than the violation of a religious prohibition. In moral and legal terms, however, sins of commission are ordinarily much more serious than those of omission, in the absence of some specific duty that one has undertaken.

As I have argued in my book, When Sex Counts: Making Babies and Making Law, a prohibition against abortion amounts to a government-imposed requirement that women remain pregnant. Prohibiting the morning-after-pill or the I.U.D., however, would go one step further: it would require that women who are not pregnant actually become pregnant against their will.


Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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