The Meaning of “Life”: The Morning-After-Pill, the Question of When Life Begins, and Judicial Review


The Article foresees that certain state legislation limiting access to the morning-after-pill will thrust the question of when life begins onto the courts. This is due both to fact that the morning-after-pill has the potential to act at a point when the existence of potential life is in dispute and largely a matter of belief and to the fact that the constitutionality of the legislation may depend on whether courts consider the morning-after-pill abortion or contraception.

The Article argues that courts should address the question of whether to consider the morning-after-pill abortion or contraception by attempting to adopt and apply a constitutional definition of potential life that is consistent with the American people’s beliefs regarding when pregnancy or potential life begins and how personal beliefs about this subject should impact reproductive rights. Finally, the Article argues that in light of the American people’s beliefs regarding the effect their personal moral beliefs should have on personal freedoms, judges should adopt a presumption of invalidity for any definition that would impair individual rights. This presumption, however, should be rebuttable on a finding that a supermajority of the public believes that the existence of potential life at a particular point enjoys such widespread acceptance that it should affect the legal rights of even those who do not so believe.

Part I establishes the possibility that State application of abortion restrictions to the morning-after-pill will result in the need for a court to decide whether the morning-after-pill is contraception or abortion. Part II first argues that State governments do not have the authority to impose their views regarding when life begins on the people in their States. Second, Part II argues for the propriety of judicial review as a mechanism for deciding whether to lump the morning-after-pill in with abortion or with contraception for constitutional purposes. Specifically, Part II argues that courts should adopt the rebuttable presumption described briefly above in order to honor the will of the American people themselves.


Constitutional Law | Law and Gender | Law and Society | Sexuality and the Law

Date of this Version

November 2006