See Trends in Abortion in the United States, 1973–2011, Guttmacher Institute (2014), available at <http://www.guttmacher.org/presentations/trends.pdf> (reporting that “more abortion restrictions were enacted in 2011–2013 than in the entire previous decade”) (last visited January 22, 2015).+(reporting+that+“more+abortion+restrictions+were+enacted+in+2011–2013+than+in+the+entire+previous+decade”)+(last+visited+January+22,+2015).>Google Scholar

RU-486 is marketed under the trade names “Korlym” and “Mifeprex.” See Orange Book: Approved Drug Products with Therapeutic Equivalence Evaluations FDA (2013), available at <http://www.accessdata.fda.gov/scripts/Cder/ob/docs/tempai.cfm> (last visited January 22, 2015).+(last+visited+January+22,+2015).>Google Scholar

See State Policies in Brief: Requirements for Ultrasound, Guttmacher Institute (2015), available at <http://www.guttmacher.org/statecenter/spibs/spib_RFU.pdf> (last visited January 22, 2015). Louisiana, Texas, and Wisconsin have speech and display provisions. Two other states, North Carolina and Oklahoma, have laws with this requirement, but those laws are permanently enjoined. Id.+(last+visited+January+22,+2015).+Louisiana,+Texas,+and+Wisconsin+have+speech+and+display+provisions.+Two+other+states,+North+Carolina+and+Oklahoma,+have+laws+with+this+requirement,+but+those+laws+are+permanently+enjoined.+Id.>Google Scholar

While some state restrictions are specific to EC, restrictions highlighted here are designed for chemical abortions and do not seem to have been designed with EC in mind. It is unclear if the spillover is intentional. But if the spillover was unintentional, it could easily be avoided with a carve out for EC like that found in Kansas. See infra note 94.Google Scholar

See infra Part I.B.2.Google Scholar

Id.Google Scholar

See State Policies in Brief: Emergency Contraception, Guttmacher Institute (2015), available at <http://www.guttmacher.org/statecenter/spibs/spib_EC.pdf> (last visited January 22, 2015) (outlining restrictions placed by 9 states on access to EC, including 6 states that “explicitly allow pharmacists to refuse to dispense contraceptives”). Notice that 18 states and the District of Columbia have taken concrete steps to ensure access to EC. Id.+(last+visited+January+22,+2015)+(outlining+restrictions+placed+by+9+states+on+access+to+EC,+including+6+states+that+“explicitly+allow+pharmacists+to+refuse+to+dispense+contraceptives”).+Notice+that+18+states+and+the+District+of+Columbia+have+taken+concrete+steps+to+ensure+access+to+EC.+Id.>Google Scholar

We recognize that “right-to-life” and “pro-life,” like “prochoice,” and even “reproductive rights,” are loaded terms, but we use them as a matter of convention. See Shepard, A. C., In the Abortion Debate, Words Matter, NPR (2010), available at <http://www.npr.org/blogs/ombudsman/2010/03/in_the_abortion_debate_words_m_1.html> (last visited January 22, 2015). (“The terms pro-choice and pro-life are in such widespread use these days that they're just as neutral as their alternatives (abortion rights advocate or abortion rights opponent)…Just as important, the phrases allow us to write more colloquially – e.g., to identify someone as a pro-choice Democrat or pro-life protester, rather than using wordier, less conversational descriptions.”).+(last+visited+January+22,+2015).+(“The+terms+pro-choice+and+pro-life+are+in+such+widespread+use+these+days+that+they're+just+as+neutral+as+their+alternatives+(abortion+rights+advocate+or+abortion+rights+opponent)…Just+as+important,+the+phrases+allow+us+to+write+more+colloquially+–+e.g.,+to+identify+someone+as+a+pro-choice+Democrat+or+pro-life+protester,+rather+than+using+wordier,+less+conversational+descriptions.”).>Google Scholar

Emergency Contraception, Texas Right to Life (2014), available at <https://www.texasrighttolife.com/about/150/Emergency-Contraception> (last visited January 22, 2015).+(last+visited+January+22,+2015).>Google Scholar

Id. Texas Right to Life opposes EC along with chemical and surgical abortions. A spokesperson for Texas Right to Life explains: “Aside from the medical risks and ethical implications, this uncertainty [about whether fertilization has occurred] dictates that the Right to Life movement cannot support the use of EC. An analogy would be that a highway road crew cannot morally dynamite a hill to make way for a new interstate without making absolutely certain that no innocent humans are in that danger zone.” Id.Google Scholar

See State Policies in Brief: Medication Abortion, Guttmacher Institute (2015), available at <http://www.guttmacher.org/statecenter/spibs/spib_MA.pdf> (last visited January 22, 2015) (identifying the results of challenges to state abortion statutes);+(last+visited+January+22,+2015)+(identifying+the+results+of+challenges+to+state+abortion+statutes);>Google Scholar

see generally Jones, R. K. Jerman, J., “Abortion Incidence and Service Availability in the United States, 2011,” 46 Perspectives on Sexual and Reproductive Health 46, no3 (2015), available at <http://www.guttmacher.org/pubs/journals/psrh.46e0414.pdf> (last visited January 22, 2015Google Scholar

Federal and State Bans and Restrictions on Abortion, Planned Parenthood (2014), available at <http://www.plannedparenthoodaction.org/issues/abortion-access/federal-and-state-bans-and-restrictions-on-abortion/> (last visited January 22, 2015).+(last+visited+January+22,+2015).>Google Scholar

Compare Stuart v. Loomis, 992 F.Supp.2d 585 (M.D. N.C. 2014) affirmed by Stuart v. Camnitz — F.3d — 2014 WL 7237744 (finding a violation of the First Amendment, mooting the need to reach plaintiffs' contention that North Carolina's regulatory scheme was an undue burden on a woman's right to obtain an abortion) with Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir., Jan. 10, 2012) (finding no violation of the First Amendment using an undue burden analysis while noting that “the Appellees here do not contend that the…disclosures inflict an unconstitutional undue burden on a woman's substantive due process right to obtain an abortion”).Google Scholar

See also Suter, S., “The First Amendment and Physician Speech in Reproductive Decision Making,” Journal of Law, Medicine & Ethics 43, no1 (2015): 22–34, for a review and evaluation of the challenges' merits and likely success.Google Scholar

See Stuart v. Loomis, supra note 12, at 600 (citations omitted).Google Scholar

See Hrobak, R. Wilson, R. F., “Emergency Contraceptives or ‘Abortion-Inducing’ Drugs? Empowering Women to Make Informed Decisions,” Washington & Lee Law Review 71, no2 (2014): 1385–1428.Google Scholar

On a state's ability to regulate for safety, see generally Calhoun, S. W., “Stopping Philadelphia Abortion Provider Kermit Gosnell and Preventing Others Like Him: An Outcome that Both Pro-Choicers and Pro-Lifers Should Support,” Villanova Law Review 57, no1 (2012): 1–44.Google Scholar

Portions of Texas's abortion statutes have recently been challenged in court. Applying an undue burden analysis from Casey to the Texas statute, the Appeals Court “conclude[d] that the enumerated provisions of H.B. 15 requiring disclosures and written consent are sustainable under Casey, are within the State's power to regulate the practice of medicine, and therefore do not violate the First Amendment.” Lakey supra note 12, at 580. See Planned Parenthood v. Casey 505 U.S. 833 (1992).Google Scholar

See Tex. Health & Safety Code Ann. § 171.001 et seq. (2014). This Subchapter is currently the subject of ongoing litigation. A district court found portions of Subchapter A unconstitutional under an undue burden analysis and permanently enjoined their enforcement.Google Scholar

See Whole Woman's Health v. Lakey — F. Supp.2d — 2014 WL 4346480 (W.D. Tex., Austin Div. 2014). Following an appeal by Texas state officials and an emergency motion to stay the permanent injunction, the U.S Court of Appeals for the Fifth Circuit granted the stay in part.Google Scholar

See Whole Woman's Health v. Lakey 769 F.3d 285 (5th Cir. 2014). Subsequently, the Supreme Court of the United States granted in part and denied in part an application to vacate the stay of final judgment. See Whole Woman's Health v. Lakey 135 S. Ct. 399 (2014).Google Scholar

See Tex. Health & Safety Code Ann. § 171.011 et seq. (2014). Texas's Administrative Code generally governs the general duty to provide informed consent for medical procedures.Google Scholar

See generally 22 Tex. Admin. Code § 165.6; 25 Tex. Admin. Code §§ 601.4, 601.5, 601.7, 601.8, 601.9 (2014); Texas Medical Association (2012), available at <http://www.texmed.org/Template.aspx?id=6049#Proper> (last visited January 22, 2015)(providing a general discussion). In Texas, a disclosure panel prepares lists of what physicians must tell patients in order to avoid liability.+(last+visited+January+22,+2015)(providing+a+general+discussion).+In+Texas,+a+disclosure+panel+prepares+lists+of+what+physicians+must+tell+patients+in+order+to+avoid+liability.>Google Scholar

See Texas Medical Disclosure Panel, Texas Department of State Health Services (May 9, 2013), available at <http://www.dshs.state.tx.us/hfp/tmdp.shtm> (last visited January 22, 2015). In what amounts to a safe harbor, Texas physicians may use off-the-rack disclosure forms to provide information to patients about risks inherent in particular procedures. Abortion is a listed procedure.+(last+visited+January+22,+2015).+In+what+amounts+to+a+safe+harbor,+Texas+physicians+may+use+off-the-rack+disclosure+forms+to+provide+information+to+patients+about+risks+inherent+in+particular+procedures.+Abortion+is+a+listed+procedure.>Google Scholar

See 25 Tex. Admin. Code § 601.2(a)(13) and (14) (listing “surgical” and “medical abortion/non-surgical”). Texas's bifurcated statutory scheme – generally regulating informed consent in one place and specifically regulating mandated disclosures about abortion in another – may limit the ability to generalize from Texas's regulatory framework. Yet other states also have general informed consent statutes as well as more specific abortion provisions. Compare Kan. Stat. Ann. § 65–4974 (2014) (general informed consent statute) with Kan. Stat. Ann. § 65–6709 (2014) (providing detailed requirements for informed consent in the abortion context).Google Scholar

See Tex. Health & Safety Code Ann. § 171.041 et seq. (2014).Google Scholar

See Tex. Health & Safety Code Ann. § 171.061 et seq. (2014).Google Scholar

Polling: Abortion, Gallup (2012), available at <http://www.gallup.com/poll/1576/abortion.aspx> (last visited January 22,2015). When asked by Gallup “do you think abortion should generally be legal or generally illegal during each of the following stages of pregnancy,” 61% in 2012 answered that abortion should be legal during the first three months of pregnancy. Id. During the second three months, only 27% said that abortion should be legal, and during the final three months of a woman's pregnancy, less than 1 in 6, 14%, thought it should be legal. Id.+(last+visited+January+22,2015).+When+asked+by+Gallup+“do+you+think+abortion+should+generally+be+legal+or+generally+illegal+during+each+of+the+following+stages+of+pregnancy,”+61%+in+2012+answered+that+abortion+should+be+legal+during+the+first+three+months+of+pregnancy.+Id.+During+the+second+three+months,+only+27%+said+that+abortion+should+be+legal,+and+during+the+final+three+months+of+a+woman's+pregnancy,+less+than+1+in+6,+14%,+thought+it+should+be+legal.+Id.>Google Scholar

See Tex. Health & Safety Code Ann. § 171.061(6) (2014) (“‘Mifeprex regimen,’ ‘RU-486 regimen,’ or ‘RU-486’ means the abortion-inducing drug regimen approved by the United States Food and Drug Administration that consists of administering mifepristone and misoprostol.”).Google Scholar

The two drugs used in the two-step drug regime are mifepristone, which is administered first, and misoprostol, administered second unless a terminated pregnancy is confirmed. See Food & Drug Admin., Mifeprex Label Information>, available at <http://www.accessdata.fda.gov/drugsatfda_docs/label/2000/20687lbl.htm> (last visited January 22, 2015) (listing drug information for Mifeprex) (hereinafter Mifeprex Label Information); Food & Drug Admin., Cytotec Label Information, available at <http://www.accessdata.fda.gov/drugsatfda_docs/label/2002/19268slr037.pdf> (listing drug information for Cytotec).,+available+at++(last+visited+January+22,+2015)+(listing+drug+information+for+Mifeprex)+(hereinafter+Mifeprex+Label+Information);+Food+&+Drug+Admin.,+Cytotec+Label+Information,+available+at++(listing+drug+information+for+Cytotec).>Google Scholar

See Tex. Health & Safety Code Ann. § 171.063(a).Google Scholar

See Tex. Health & Safety Code Ann. § 171.063(b).Google Scholar

Prescribing a drug for uses other than those suggested by the label or in different amounts is common practice known as “off-label usage.” Once a drug is approved by the FDA, “physicians can prescribe it in any way that they consider medically appropriate…[and] for any medical condition irrespective of whether or not that condition is included on the drug's label.” Cohen, J.et al, “Off-Label Use Reimbursement,” Food and Drug Law Journal 64, no2 (2009): 391–403.Google Scholar

See “ACOG Practice Bulletin No. 67: Clinical Management Guidelines For Obstetrician–Gynecologists” Obstetrics & Gynecology 106, no4 (2005): 871–882.Google Scholar

See id.Google Scholar

See Tex. Health & Safety Code Ann. § 171.063(a).Google Scholar

Id. at (c). This requirement is gleaned from Mifeprex's label.Google Scholar

See Mifeprex Label Information, supra note 23 (“Mifeprex may be administered only in a clinic, medical office, or hospital, by or under the supervision of a physician, able to assess the gestational age of an embryo and to diagnose ectopic pregnancies.”). Determining the intrauterine location would likely require a transvagianal ultrasound.Google Scholar

See Lithwick, D., “Virginia's Proposed Ultrasound Law Is an Abomination: Under the New Legislation, Women Who Want an Abortion Will Be Forcibly Penetrated for No Medical Reason. Where's the Outrage?” Slate (2012), available at <http://www.slate.com/articles/double_x/doublex/2012/02/virginia_ultrasound_law_women_who_want_an_abortion_will_be_forcibly_penetrated_for_no_medical_reason.html> (last visited January 22, 2015). (last visited January 22, 2015).' href=https://scholar.google.com/scholar?q=See+Lithwick,+D.,+“Virginia's+Proposed+Ultrasound+Law+Is+an+Abomination:+Under+the+New+Legislation,+Women+Who+Want+an+Abortion+Will+Be+Forcibly+Penetrated+for+No+Medical+Reason.+Where's+the+Outrage?”+Slate+(2012),+available+at++(last+visited+January+22,+2015).>Google Scholar

See Suter, supra note 12.Google Scholar

Tex. Health & Safety Code Ann. § 171.063(d)(1).Google Scholar

Id. at (d)(2).Google Scholar

Id. at (g). The FDA label requires physicians to report only to the drug's manufacturer, and lists possible adverse effects.Google Scholar

See Mifeprex Label Information, supranote 23.Google Scholar

Tex. Health & Safety Code Ann. § 171.063 (e) and (f). This requirement is adapted from the FDA label.Google Scholar

See Mifeprex Label Information, supra note 23.Google Scholar

For a review of the Supreme Court's abortion jurisprudence from Roe v. Wade to present, see Understanding Family Law, 4th ed., ed. DeWitt Gregory, J. Swisher, P. N. Wilson, R. F., eds. (New Providence: LexisNexis, 2013): At Chapter 5.Google Scholar

See Post, R., “Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech,” University of Illinois Law Review 2007, no3 (2007): 939–990.Google Scholar

See Loomis, , supra note 12.Google Scholar

Loomis, , supra note 12 (“Plaintiffs contend that the speech-and-display provision violates their First Amendment rights because it compels them to deliver the state's content-based message to their patients, a message they do not want to deliver in the absence of a request from or consent of their patients.”).Google Scholar

In litigation challenging Texas's restrictions on chemical abortions, plaintiffs challenged them as an undue burden. The district court agreed, but was reversed by the U.S. Court of Appeals for the Fifth Circuit, which sustained Texas's chemical abortion provisions. See Texas Med. Providers Performing Abortion Servs. v. Lakey 806 F. Supp. 2d 942 (Tex, W.D. 2011) vacated in part, 667 F.3d 570 (5th Cir. 2012);Google Scholar

see also infra Part II (for outcomes of First Amendment challenges).Google Scholar

Ella, a one-step drug, has ordinary side-effects, like headaches, abdominal pain, and nausea, not the dramatic side effects associated with Mifeprex.Google Scholar

See Food & Drug Admin., Ella Prescribing Information, available at <http://www.accessdata.fda.gov/drugsatfda_docs/label/2010/022474s000lbl.pdf> (last visited January 22, 2015) (hereinafter ella Prescribing Information); (“The most common adverse reactions (⩾5%) in the clinical trials were headache (18%), abdominal pain (12%), nausea (12%), dysmenorrhea (9%), fatigue (6%) and dizziness (5%).”).+(last+visited+January+22,+2015)+(hereinafter+ella+Prescribing+Information);+(“The+most+common+adverse+reactions+(⩾5%)+in+the+clinical+trials+were+headache+(18%),+abdominal+pain+(12%),+nausea+(12%),+dysmenorrhea+(9%),+fatigue+(6%)+and+dizziness+(5%).”).>Google Scholar

See infra Part I.B.2. and Part I.B.3.Google Scholar

Tex. Health & Safety Code Ann. § 171.061(2).Google Scholar

See, e.g., Methotrexate Sodium Label, FDA, available at <http://www.accessdata.fda.gov/drugsatfda_docs/label/2004/11719slr106_methotrexate_lbl.pdf> (last visited January 22, 2015) (reporting that Methotrexate is used to treat cancer, but “has been reported to cause fetal death”).+(last+visited+January+22,+2015)+(reporting+that+Methotrexate+is+used+to+treat+cancer,+but+“has+been+reported+to+cause+fetal+death”).>Google Scholar

Tex. Health & Safety Code Ann. § 171.061(1) (2014).Google Scholar

Id., at (8).Google Scholar

Id., at (9).Google Scholar

Id., at (1).Google Scholar

The statute also requires intent to terminate a diagnosable pregnancy and knowledge that the procedure will “with reasonable likelihood, cause the death of the woman's unborn child.” See Tex. Health & Safety Code Ann. § 171.061(1) (2014). Because ella works by two mechanisms, it is known, in all reasonable probability, that ella could act post-fertilization to disrupt implantation. See supra Part I.B.2. Assuming conception is measured from fertilization, it would seem that the requisite knowledge is present. The question of intent is harder. Here, one can imagine a physician defending the choice to prescribe ella as the intent only to prevent ovulation, not the intent for the drug to act at a later juncture. But because the drug can act both ways, and because the physician cannot know which way it is acting in a given case, it is difficult to see the physician as having the intent only to prevent ovulation but not the intent for the drug to act later. The only defense that seems feasible would be to maintain that the physician intended that the drug only work to prevent ovulation.Google Scholar

See Tex. Fam. Code Ann. § 33.001 et seq.Google Scholar

Tex. Fam. Code Ann. § 33.001(2).Google Scholar

Tex. Penal Code Ann. § 1.02.Google Scholar

Id.Google Scholar

Tex. Penal Code Ann. § 1.07 (26).Google Scholar

See Tex. Penal Code Ann. § 19.06 (2014) (providing an exception to criminal homicide if the result of a “lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure”).Google Scholar

See Tex. Penal Code Ann. § 1.07 (providing that definitions are applicable “[i]n this code”); Tex. Fam. Code Ann. § 33.001(2) (limiting the definitions in the Family Code to “this chapter”).Google Scholar

See Andrade, B. Spahn, E., “Mis-Conceptions: The Moment of Conception in Religion, Science, and Law,” University of San Francisco Law Review 32 (Winter 1998): 261–333 (contending the proper definition of conception is implantation).Google Scholar

For a review of how labels muddy the debate more than clarify it in the abortion and other contexts, see Fretwell Wilson, R., “The Erupting Clash between Religion and the State over Contraception, Sterilization and Abortion,” in Hertzke, , ed., Religious Freedom in America: Constitutional Roots and Contemporary Challenges (Norman: University of Oklahoma Press, 2015).Google Scholar

See Part II.B.Google Scholar

See Cakmak, H. Taylor, H. S., “Implantation Failure: Molecular Mechanisms and Clinical Treatment,” Human Reproductive Update (2011), available at <http://humupd.oxfordjournals.org/content/17/2/242> (last visited January 22, 2015).+(last+visited+January+22,+2015).>Google Scholar

Id.Google Scholar

See Gale Encyclopedia of Medicine (2008 edition) (“Implantation: The process in which the fertilized egg embeds itself in the wall of the uterus.”).Google Scholar

See, e.g., “implantation,” American Heritage Medical Dictionary (2007 revised edition)(“im•plan•ta•tion: n. 1. The act or an instance of implanting. 2. The condition of being implanted. 3. The process by which a fertilized egg implants in the uterine lining.”).Google Scholar

“Implantation,” Merriam Webster Dictionary (2014), available at <http://www.merriam-webster.com/implantation> (last visited January 22, 2015) (“1a: The act or process of implanting something, b: The state resulting from being implanted; 2: In placental mammals: The process of attachment of the early embryo to the maternal uterine wall”).+(last+visited+January+22,+2015)+(“1a:+The+act+or+process+of+implanting+something,+b:+The+state+resulting+from+being+implanted;+2:+In+placental+mammals:+The+process+of+attachment+of+the+early+embryo+to+the+maternal+uterine+wall”).>Google Scholar

See Hrobak, Wilson, , supra note 14 (canvassing 14 years of studies about Plan B). Despite warnings on the label that suggest Plan B may have post-fertilization mechanisms of action, authorities believe Plan B works solely by delaying or inhibiting ovulation, preventing the sperm from ever meeting the egg: “Early treatment with [EC]s containing only the progestin levonorgestrel [Plan B] has been shown to impair the ovulatory process and luteal function.” Id.Google Scholar

Expected pregnancy “calculate[es] the number of pregnancies that might have occurred without use of the intervention.” Glacier, A. F.et al, “Ulipristal Acetate Versus Levonorgestrel for Emergency Contraception: A Randomised Non-Inferiority Trial and Meta-Analysis,” The Lancet 375 (2010): 555–562, at 555.Google Scholar

For example, a 2006 study found the women who were administered ella experienced “about half the number of pregnancies” when compared to “those treated with [Plan B], with pregnancy rates of 0.9% vs 1.7%.” Batur, P., “Emergency Contraception: Separating Fact from Fiction,” Cleveland Clinic Journal of Medicine 79, no11 (2012): 771–776, at 772, available at <http://www.ccjm.org/content/79/11/771.full.pdf+html> (last visited January 22, 2015). A later study found that ella prevented 85% of expected pregnancies compared to Plan B's 69%. See Gemzell-Danielsson, K. Meng, C.-Xia, “Emergency Contraception: Potential Role of Ulipristal Acetate,” International Journal of Women's Health 2 (2010): 53–61, at 57 (comparing results in an efficacy study of ECs).Google Scholar

See ella Prescribing Information, supra note 41.Google Scholar

See Food & Drug Admin., Plan B Prescribing Information, available at <http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/021045s015lbl.pdf> (listing drug information for Plan B).+(listing+drug+information+for+Plan+B).>Google Scholar

See Gemzell-Danielsson, K.et al, “Review Article: Emergency Contraception – Mechanisms of Action,” Contraception 87 no3 (2013): 300–308 (explaining that ella is “effective even when administered before ovulation, when LH has already started to rise, a time period when [Plan B] is no longer effective”).Google Scholar

See Brache, V.et al, “Immediate Pre-Ovulatory Administration of 30 mg Ulipristal Acetate Significantly Delays Follicular Rupture,” Hum. Reprod. 25, no9 (2010): 2256–2263 (reporting that “this study provides mechanistic evidence to explain how [ella] could be more effective in preventing pregnancy than current reference EC methods”). Ella “is able to inhibit or significantly delay follicular rupture for over 5 days if given immediately before ovulation by postponing the LH peak,” the finale of the LH surge. Id., at 2262.CrossRefGoogle Scholar

Id.Google Scholar

Trussell, J.et al, “Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy” (August 2014) (unpublished manuscript), available at <http://ec.princeton.edu/questions/ec-review.pdf.> (last visited January 26, 2015).+(last+visited+January+26,+2015).>Google Scholar

Ella Prescribing Information, supra note 41 (emphasis added).Google Scholar

Miech, Ralph P., “Immunopharmacology of Ulipristal as an Emergency Contraceptive,” 3 Int'l J. Women's Health 3 (2011): 391–397 at 392. Miech defines “abortifiacient” to be the “loss of the embryo occurring either at the pre-implantation stage or at the post-implantation stage.” Id.Google Scholar

Id. at 392.Google Scholar

Id.Google Scholar

See “Decidua,” The Free Medical Dictionary (2014), available at <http://medical-dictionary.thefreedictionary.com/decidua> (last visited January 26, 2015) (defining the decidua as “the endometrium of the pregnant uterus, all of which, except the deepest layer, is shed at parturition”).+(last+visited+January+26,+2015)+(defining+the+decidua+as+“the+endometrium+of+the+pregnant+uterus,+all+of+which,+except+the+deepest+layer,+is+shed+at+parturition”).>Google Scholar

Keenan, J., “Ulipristal Acetate: Contraceptive or Contragestive?” Annals of Pharmacotherapy 45, no6 (2011): 813–815 at 814. Ulipristal acetate is the chemical name for ella. Id.Google Scholar

Id., at 814 (noting that ella's “contragestive effect” is likely why it is so effective).Google Scholar

Mozzanega, B.et al, “Ulipristal Acetate: Critical Review about Endometrial and Ovulatory Effects in Emergency Contraception,” Reproductive Sciences 21, no6 (2014): 678–685 (electronic prerelease).Google Scholar

Id., at 5. The endometrium is the “the mucous membrane lining the uterus.” “Endometrium,” Dictionary.com (2014), available at <http://dictionary.reference.com/browse/endometrium> (last visited January 22, 2015).+(last+visited+January+22,+2015).>Google Scholar

“Top-Ranked Hospitals for Gynecology,” U.S. News and World Report (2013), available at <http://health.usnews.com/best-hospitals/rankings/gynecology> (last visited January 22, 2015).+(last+visited+January+22,+2015).>Google Scholar

See Batur, , supra note 66.Google Scholar

Compare Tex. Health & Safety Code Ann. § 171.061(1) (“‘Abortion’ means the act of using, administering, prescribing, or otherwise providing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to terminate a clinically diagnosable pregnancy of a woman and with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the woman's unborn child.”) (emphasis added) with Tex. Health & Safety Code Ann. § 171.002(1) (“‘Abortion’ means the use of any means to terminate the pregnancy of a female known by the attending physician to be pregnant with the intention that the termination of the pregnancy by those means will, with reasonable likelihood, cause the death of the fetus.”) (emphasis added).Google Scholar

See Wilcox, A.et al, “Time of Implantation of the Conceptus and Loss of Pregnancy,” New England Journal of Medicine 340 (1999): 1796–1799, at 1796.Google Scholar

Id. hCG's “production by the conceptus begins early, with expression of messenger RNA reported at the eight-cell stage, [which occurs before implantation]. The abrupt appearance of [hCG] and its exponential rise in maternal serum or urine may not mark the very earliest steps in the implantation process, but they do mark the point at which the conceptus has successfully invaded the maternal tissue.” Id.Google Scholar

Xiao-Guang, F. Zhen-Qun, Z., “A Study of Early Pregnancy Factor Activity in Preimplantation,” American Journal of Reproductive Immunology 37, no5 (1997): 359–364, at 359.Google Scholar

See Tex. Health & Safety Code Ann. § 171.002.Google Scholar

See ella Prescribing Information, supra note 41.Google Scholar

See supra note 26 (discussing off-label usage).Google Scholar

Tex. Health & Safety Code Ann. § 171.012(4).Google Scholar

See Mayo Clinic Staff, Fetal development: The First Trimester, The Mayo Clinic (2014), available at <http://www.mayoclinic.org/healthy-living/pregnancy-week-by-week/in-depth/prenatal-care/art-20045302> (last visited January 22, 2015) (“The fifth week of pregnancy, or the third week after conception, marks the beginning of the embryonic period. This is when the baby's brain, spinal cord, heart and other organs begin to form….[At Week 6, the] “baby's heart is pumping blood.”).+(last+visited+January+22,+2015)+(“The+fifth+week+of+pregnancy,+or+the+third+week+after+conception,+marks+the+beginning+of+the+embryonic+period.+This+is+when+the+baby's+brain,+spinal+cord,+heart+and+other+organs+begin+to+form….[At+Week+6,+the]+“baby's+heart+is+pumping+blood.”).>Google Scholar

See, e.g., Kan. Stat. Ann. § 65–6701 et seq.; N.C. Gen. Stat Ann. §§ 90–21.80 et seq.Google Scholar

Kan. Stat. Ann. § 65–6702.Google Scholar

Tex. Health & Safety Code Ann. § 171.063.Google Scholar

One federal district court struck North Carolina's speech and display provisions as unconstitutional infringements on free speech, see Stuart v. Loomis, supra note 12, while a court of appeals upheld nearly identical provisions. Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir., Jan. 10, 2012). See also Part II.A infra.Google Scholar

This topic is amply explored in this issue. See Suter, , supranote 12.Google Scholar

Acuna v. Turkish, 930 A.2d 416, 420 (N.J. 2007).Google Scholar

930 A.2d 416 (N.J. 2007).Google Scholar

Id., at 420. Acuna alleged the physician also failed to tell her that “(2) there existed the potential risk that Andres ‘was capable of experiencing pain’ at eight weeks gestation; (3) abortion involved ‘actually killing an existing human being’; (4) she would be at risk of suffering from ‘post-abortion syndrome,’ a form of a post-traumatic stress disorder; and (5) she would come to realize that she ‘was responsible for killing her own child’ and bear a weight of guilt for the rest of her life.” Id.Google Scholar

See Kan. Stat. Ann. § 65–6709(b)(5) (requiring that “[a]t least 24 hours before the abortion, the physician who is to perform the abortion, the referring physician or a qualified person has informed the woman in writing that…the abortion will terminate the life of a whole, separate, unique, living human being”).Google Scholar

Acuna, , 930 A.2d, at 419.Google Scholar

Id. The physician contested Acuna's account, but “could not recall how he responded but believes he likely would have told her that a ‘seven-week pregnancy is not a living human being,’ but that it ‘is just tissue at this time.”’ Id.Google Scholar

Id. As the result of an “incomplete abortion” that resulted in Acuna experiencing vaginal bleeding, Acuna returned to the clinic and a nurse told her that “the doctor had left parts of the baby inside of her.” Id. (footnote omitted).Google Scholar

See Hrobak, Wilson, , supra note 14.Google Scholar

Acuna, , 930 A.2d at 425 (citation omitted).Google Scholar

Id. at 428 (emphasis added).Google Scholar

Id. at 427 (emphasis added).Google Scholar

Id. (emphasis added).Google Scholar

Id.Google Scholar

In Doe v. Planned Parenthood/Chi. Area, 956 N.E.2d 564 (Ill. App. Ct. 2011), a woman sought a nearly identical disclosure to that in Acuna. The court evaluated her claim under the professional standard, measured by the disclosure that would be given by “the reasonable physician.” Id. at 570. It added that “[n]o court, regardless of where it sits, has found a common law duty requiring doctors to tell their pregnant patients that aborting an embryo, or fetus, is the killing of an existing human being.” Id., at 572 (citing Acuna v. Turkish, 930 A.2d 416, 418 (N.J. 2007)) (emphasis added). It rejected the “plaintiff's claims that the defendants owed her disclosures under Illinois common law that reflected something other than the scientific, moral, or philosophical viewpoint of Planned Parenthood as an abortion clinic.” Id., at 573.Google Scholar

Acuna, , 930 A.2d, at 427–28.Google Scholar

Citing the Acuna, court's description of the common law with approval, the Doe court also found that the common law “requires doctors to provide their pregnant patients seeking an abortion only with material medical information, including gestational stage and medical risks involved in the procedure.” Doe, , supra note 111, at 573.Google Scholar

Stuart v. Loomis, supra note 12 (holding unconstitutional portions of North Carolina's Women's Right to Know Act as a violation of First Amendment protections).Google Scholar

Codified at N.C. Gen Stat., §§ 90–21.80 through 90–21.92. As the court summarizes that act, it requires a provider to “(i) insert[] an ultrasound probe into the patient's vagina, or (ii) place[] an ultrasound probe on her abdomen,” and then describe the image, including “dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.” Stuart v. Loomis, supra note 12, at 589.Google Scholar

See Stuart v. Camnitz — F.3d — 2014 WL 7237744 (2014).Google Scholar

Stuart v. Loomis, supra note 12, at 607 (emphasis added).Google Scholar

Id.Google Scholar

Id.Google Scholar

Id. at 600 (citations omitted).Google Scholar

Stuart v. Camnitz — F.3d — 2014 WL 7237744 at * 14. (2014).Google Scholar

Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (2012).Google Scholar

Texas Medical Providers Performing Abortion Services v. Lakey, 806 F.Supp.2d 942 (W.D. Tx. 2011).Google Scholar

Id., at 949. (challenging the restriction as “compel[ling] physicians to engage in government-mandated speech, in violation of the First and Fourteenth Amendments”).Google Scholar

Tex. Health & Safety Code Ann. § 171.012(4) (2013).Google Scholar

“[T]he Appellees here do not contend that the…disclosures inflict an unconstitutional undue burden on a woman's substantive due process right to obtain an abortion.” Texas Medical Providers Performing Abortion Services v. Lakey, supra note 12, at 577.Google Scholar

Id., at 580.Google Scholar

Texas Medical Providers Performing Abortion Services v. Lakey, 2012 WL 373132 (W.D. Tx. 2012).Google Scholar

Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir., Jan. 10, 2012) (J. Higginbotham, concurring).Google Scholar

Id.Google Scholar

Id., at 585 (emphasis added).Google Scholar

Id.Google Scholar

Id. He notes that “the fact that such truthful, accurate information may cause a woman to choose not to abort her pregnancy only reinforces its relevance to an informed decision”Google Scholar

Id.Google Scholar

See Hrobak, Wilson, , supra note 14.Google Scholar

Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111–152, 124 Stat. 1029 through May 1, 2010.Google Scholar

ACOG, Amicus Brief, Autocam v. Sebelius (2013), available at <http://www.acog.org/∼/media/Sections/MO/AutocamECAmicusBrief.pdf> (last visited January 22, 2015).+(last+visited+January+22,+2015).>Google Scholar

Id. (“Pregnancy is established only upon the conclusion of [] implantation. The scientific definition of pregnancy is also the legal definition of pregnancy, accepted by governmental agencies and all major U.S. medical organizations.”).Google Scholar

See supra Part I.B.3.Google Scholar

AAPLOG, “AAPLOG Position on ‘ELLA,’ the Newest ‘Emergency Contraception,”’ 2014, available at <http://www.aaplog.org/position-and-papers/emergency-contraception/aaplogposition-on-%E2%80%9Cella%E2%80%9D-the-newest-%E2%80%9Cemergency-contraception%E2%80%9D/>. See infra note 139 (addressing AAPLOG's history)..+See+infra+note+139+(addressing+AAPLOG's+history).>Google Scholar

AAPLOG, “About,” 2014, available at <http://www.aaplog.org/about-2/> (last visited January 29, 2015).+(last+visited+January+29,+2015).>Google Scholar

Chung, G. S.et al, “Obstetrician-Gynecologists' Beliefs About When Pregnancy Begins,” American Journal of Obstetrics & Gynecology 206, no2 (2012): 132.e1–132.37, at 132.e1, available at <http://www.ajog.org/article/S0002–9378(11)02223-X/fulltext> (explaining that for the survey, the authors “anticipated that physicians would understand ‘conception’ to mean fertilization, which is arguably the predominant definition in medical literature”).Google Scholar

See also Spinnato, J. A., “Informed Consent and the Redefining of Conception: A Decision Illconceived?” Journal of Maternal-Fetal Medicine 7, no6 (1998): 264–268.Google Scholar

See Chung, , supra note 140.Google Scholar

Id.Google Scholar

See id., at 132.e3–e4 (“[R]eligious doctors and those who objected to abortion were less likely to be ‘not sure’. … [B]elieving that pregnancy begins at implantation rather than conception (excluding those who were ‘not sure’) was associated with religious affiliation, the importance of religion, and objections to abortion.”).Google Scholar

Dye, H. M.et al, “Women and Post-Fertilization Effects of Birth Control: Consistency of Beliefs, Intentions and Reported Use,” BioMed Central Women's Health 5, no11 (2005): At 4, available at <http://www.biomedcentral.com/content/pdf/1472-6874-5-11.pdf> (last visited January 22, 2015). For a description of the study sites, see id., at 2–3 (surveying Utah and Oklahoma family practices and Ob/Gyn clinics and noting that the Oklahoma site was “a teaching clinic associated with a family medicine residency program sponsored by a Protestant religious organization” and that “[n]one of the clinics in Utah were religiously affiliated or sponsored”).Google Scholar

Id., at 4.Google Scholar

Id.Google Scholar

Id.Google Scholar

Id. Not surprisingly, women share no single view about the legality of abortion. See “Issue Ranks Lower on Agenda: Support for Abortion Slips, Results from the 2009 Annual Religion and Public Life Survey,” Pew Forum on Religion and Public Life (2009), available at: <http://www.pewforum.org/files/2009/10/abortion091.pdf> (last visited January 26, 2015) (reporting the results of two polls by ABC News/Washington Post and AP-Ipsos poll and noting that in 2009 50% of women believe abortion should be legal).+(last+visited+January+26,+2015)+(reporting+the+results+of+two+polls+by+ABC+News/Washington+Post+and+AP-Ipsos+poll+and+noting+that+in+2009+50%+of+women+believe+abortion+should+be+legal).>Google Scholar

Dye, , supra note 146, at 5.Google Scholar

See Campbell, J. W. IIIet al, “Attitudes and Beliefs About Emergency Contraception Among Patients at Academic Family Medicine Clinics,” Annals of Family Medicine 6, supplement 1 (2008): S23–7 (utilizing a “convenience sample [size of 178] of female patients aged 18 to 50 years”). Researchers asked: “Pregnancy begins when[:] A. Sperm and egg join within the female reproductive tract. B. Implantation occurs. C. The heart starts beating. D. Unsure. E. Other.” Id. at S24.Google Scholar

Id., at S23. It would have been more illuminating if researchers had separated views about pre-fertilization methods from post-fertilization methods.Google Scholar

Id., at S23. While 47% of respondents indicated that “pregnancy begins with fertilization,” only 30% believed that “life begins with fertilization” even if pregnancy was not present. Id. (emphasis added).Google Scholar

Id., at S25–S26. Only low income, below $40,000, correlated.Google Scholar

Romo, L. F.et al, “The Role of Misconceptions on Latino Women's Acceptance of Emergency Contraceptive Pills,” Contraception 69, no3 (2004): 227–235, at 232.Google Scholar

Id.Google Scholar

Id., at 233.Google Scholar

Id.Google Scholar

Some women may want only to avoid pregnancy by using EC. But to respond to concerns of women who seek to act on their values, providers will give information to some women who do not value the information. Since the information is factual, women who do not value it can simply choose to ignore it. On the other hand, procedures like sonograms offend many women because they do not involve mere factual information, but intrusive procedures.Google Scholar

Berg, J. W.et al, Informed Consent: Legal Theory and Clinical Practice, 2d ed. (New York: Oxford University Press 2001): At 14, 48.Google Scholar

Acuna, , supra note 99, at 427–28.Google Scholar

Loomis, , supra note 12, at 607.Google Scholar

See Hrobak, Wilson, , supra note 14 (discussing the usage of videotapes and other devices for providing women with material scientific information).Google Scholar

See Batur, , supra note 66.Google Scholar