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In the wake of last week’s leak of the Supreme Court’s draft opinion that would overturn Roe v. Wade, President Biden — never a strong champion of the ruling, and an outright opponent of it earlier in his career — has set about defending the constitutional right to abortion largely by talking around it. “Every other decision relating to the notion of privacy is thrown into question,” he said last week, suggesting that the logic of Justice Samuel Alito’s draft could threaten a broader range of rights, including the right to birth control.
He is not alone in his party in making that particular connection. But just how could Roe’s fall imperil other reproductive rights, and what other effects might it have on women’s health care? Here’s what people are saying.
First abortion, then birth control?
As the legal scholar Melissa Murray wrote for this newsletter in December, “A decision overruling Roev. Wade would threaten an entire line of jurisprudence rooted in the 14th Amendment’s guarantee of liberty.” This line of cases, she added, goes back to a 1923 decision guaranteeing parents the right to raise their children without undue state intervention, and it includes the right to use contraception.
Why would anti-abortion advocates want to restrict access to contraception? For one thing, as Melody Schreiber explains in The Guardian, some abortion opponents argue that birth control methods like Plan B, intrauterine devices and hormonal pills may sometimes work by preventing a fertilized egg from implanting in the uterus and should therefore be considered abortifacients. (With the exception of copper IUDs, the balance of scientific evidence does not support these arguments, as the Times health and science reporter Pam Belluck wrote in 2018.)
For another, “there is a whole wing of this group that is opposed to abortion who only support sexual intercourse when it is within the context of marriage and when it is designed to procreate,” Priscilla Smith, a lecturer on reproductive justice at Yale Law School, told Schreiber. “The use of contraception gets in the way of that.”
As Smith suggests, social conservatives who object to non-procreative sex may also oppose birth control methods that prevent pregnancy even before fertilization. At a recent conference held by the anti-abortion group Heartbeat International, Kiera Butler reports, while some conference leaders made allowances for barrier methods like condoms, others objected to them as unchristian. “My goal is to expose the risks and dangers of our birth control culture,” a presenter said.
Momentum for restricting contraception access does appear to be building on the right:
In Louisiana, the State Legislature advanced a bill that would classify abortion as homicide and defines an “unborn child” as “an individual human being from fertilization until birth.”
In Idaho, a leading Republican in the Legislature said he would support holding hearings on legislation banning morning-after pills.
On Sunday, when asked about contraception bans, Gov. Tate Reeves of Tennessee declined to rule them out, offering only “that is not what we are focused on at this time.”
But statewide bans on birth control would most likely run afoul of Griswold v. Connecticut, a landmark 1965 Supreme Court case that established the right of married people to use contraception. (The court extended that right to non-married people in 1972.) Griswold also reinforced in American jurisprudence the notion of a right to privacy, which the court ruled was implied by, if not explicitly mentioned in, the Constitution. The legal logic of Griswold would later undergird other landmark decisions, including Roe v. Wade in 1973, Lawrence v. Texas in 2003 (which outlawed criminalization of gay sex) and Obergefell v. Hodges in 2015 (which legalized same-sex marriage).
Within the Republican Party, however, there are signs of growing interest in challenging the Griswold precedent:
In March, Senator Marsha Blackburn of Tennessee criticized the ruling as “constitutionally unsound.”
Her comments came about a month after Republican candidates for state attorney general in Michigan denounced the precedent.
In Arizona, a Republican running for Senate — with Donald Trump’s help — said on his website that Roe and Griswold were wrongly decided and pledged to vote only for judges who would overturn them. The reference to Griswold has since been removed.
Could Griswold really be struck down? The Time’s Charlie Savage thinks it’s certainly possible. “Justice Alito has already accepted, in a 2014 opinion he wrote in the case of Burwell v. Hobby Lobby, that companies have a right to refuse to cover contraception in employees’ health plans if the owners believe, for religious reasons, that contraception is an abortifacient,” he writes. “Should cultural and religious conservatives in state legislatures or Congress enact further laws violating Supreme Court precedents that established modern-era rights, proponents of those laws could invoke the same arguments to press the court to overturn those precedents, too.”
But a complete overturning of Griswold may not be necessary for states to curtail contraception access, just as overturning Roe wasn’t necessary for states to chip away at abortion access. During Justice Amy Coney Barrett’s Supreme Court confirmation hearing, when asked whether Brown v. Board of Education and Loving v. Virginia were correctly decided, she said yes. But when asked the same question about Griswold, she declined to answer, asserting instead that a full statewide ban on contraception was “unthinkable.”
“Barrett’s silence on Griswold, coupled with the court’s new conservative majority, sends the signal to state governments that more restrictive contraception policies might be welcomed,” Rachel VanSickle-Ward and Kevin Wallsten write for The Washington Post.
Why the right to contraception might be here to stay
As Orin Kerr, a professor at U.C. Berkeley School of Law, noted on Twitter, there are reasons to think that birth control restrictionists will not succeed as abortion opponents have.
The first is that “within the conservative legal movement, Roe is thought to stand pretty much alone,” he wrote. “Within that worldview, there’s nothing like it: Nothing that went so far outside precedent, or text, or history.”
That view was reflected in Justice Alito’s draft opinion, which seems to pre-empt concerns that Roe’s fall would jeopardize other rights. “None of the other decisions cited by Roeand Caseyinvolved the critical moral question posed by abortion,” it reads. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.” (The Times columnist Jamelle Bouie, among others, argues this passage is disingenuous.)
Second, birth control is a much less divisive issue than abortion. A Gallup poll in 2019 found that 92 percent of Americans believed that using birth control was “morally acceptable.” Americans’ support for abortion, by contrast, is more mixed.
“For much of the last six decades,” writes Steven Benen for MSNBC, “even Republicans were cautious about criticizing Griswold for an obvious reason: The American mainstream broadly supports public access to birth control.”
Beyond abortion and birth control
Regardless of where the movement to restrict contraception access goes from here, legislation like the bill being advanced in Louisiana that criminalizes abortion on the basis of fetal personhood could have far-reaching consequences for other reproductive rights and health care. Here are a few examples.
Ectopic pregnancy treatment: The leading cause of maternal mortality in the first trimester, ectopic pregnancies cannot be carried to term; those that do not resolve in miscarriage can be treated only with medication or surgery that terminates the pregnancy. In El Salvador, where abortion is banned, “obstetricians routinely make the patient wait until the fallopian tube explodes and the embryo dies before intervening to save the mother,” wrote Michelle Oberman, a Santa Clara University law school professor, in this newsletter.
Miscarriage care: As Kaitlin Sullivan explains at NBC, abortions and miscarriage treatment often make use of the same procedures and medications. In places with severe abortion restrictions, like Texas, those who miscarry may face limited treatment options and a lower standard of care, as well as increased state scrutiny and criminal prosecution.
In vitro fertilization: Accounting for about 2 percent of all births in the United States, I.V.F. typically entails the fertilization of several eggs to maximize the chance of successful pregnancy; many of the embryos often turn out to be nonviable or superfluous. “Experts in the field now warn that state laws defining fertilization as the moment life begins could throw the procedure into legal jeopardy,” Michael Wilner reports for McClatchy.
Criminalization of “bad mothers”: In his draft opinion, Justice Alito writes that future state laws regulating abortion should be allowed to stand if they can be said to serve “legitimate interests,” which include “respect for and preservation of prenatal life at all stages of development” and “the mitigation of fetal pain.”
Under this logic, Dara E. Purvis, a professor at Penn State’s law school, argues in Slate that states could conceivably justify restrictions on all manner of behaviors during pregnancy, including drinking alcohol, smoking cigarettes, taking antidepressants or working a physically demanding job.
“The draft opinion is not yet official, and thus is not yet the law of the land,” Purvis writes. “But if I were an enterprising legislator or lobbyist bent on further restricting the rights of pregnant people, I would not be limiting myself to merely banning abortion.”
Do you have a point of view we missed? Email us at [email protected]. Please note your name, age and location in your response, which may be included in the next newsletter.
“A Woman’s Rights” [The New York Times]
“Biden wants to make the Roe v. Wade decision about much more than abortion” [Politico]
“The Growing Criminalization of Pregnancy” [The New Republic]
“When a Miscarriage Is Manslaughter” [The New York Times]
“Where Does the Anti-Abortion Movement Go After Roe?” [The New York Times]