A legal battle could play out similar to the battle over abortion.
Despite repeatedly affirming the right to access abortion care in the past, the Supreme Court may be on the verge of overturning Roe v. Wade — that is, if a leaked draft opinion penned by Justice Samuel Alito becomes reality. On May 2, in an unprecedented breach, Politico published a copy of a draft majority opinion in the upcoming case Dobbs v. Jackson that would overrule two landmark abortion rights cases: 1973’s Roe and 1992’s Planned Parenthood v. Casey. The leak immediately prompted concerns not only about the future of abortion access, but also about potential restrictions on birth control and contraception. So what happens to birth control access if abortion is banned? It’s a slippery slope.
There’s a reason people are concerned: Despite the draft opinion’s assurances that the ruling would only overturn Roe, many people along the ideological spectrum see abortion as inextricably linked with contraception. “The same political movement that wanted to overturn Roe has ideological problems with birth control as well,” Cathren Cohen, a scholar of law and policy with the UCLA Law Center on Reproductive Health, Law, and Policy, tells Elite Daily. “Any efforts to restrict abortion care are going to inherently restrict other forms of reproductive health care. A lawmaker who is opposed to abortion — in the efforts to defund Planned Parenthood or pull funds away from comprehensive reproductive health care — is going to empower the same group of people who want to restrict birth control, or at least just take resources away from the people who are providing birth control, especially under government programs and to low-income and underinsured people.”
As a practical matter, Cohen says, anti-abortion lawmakers in states like Louisiana “have misdefined what an abortion is to include the way that some IUDs and emergency contraception function, even though those are not abortions.” Recently, a Louisiana bill attempting to classify abortion as homicide and define life as starting “at fertilization” advanced from a committee to the state House of Representatives, before the bill’s sponsor pulled it from debate on May 12. That bill may have stalled for now, but according to Axios, Louisiana is one of at least 13 states that have “trigger laws” banning abortion; these laws would automatically go into effect if the Supreme Court overturned Roe v. Wade.
“Part of [the 1965 case] Griswold v. Connecticut, which gave married women the right to use birth control, is based on the right to privacy, which also relies in part on the due process clause of the 14th Amendment,” Torres-Spellicsy says. In 1972, the Supreme Court extended that same right to unmarried people in its Eisenstadt v. Baird ruling. “If the Supreme Court rules that substantive due process does not cover the right to abortion, logically the right to use birth control could be next.”
The right to privacy never explicitly appears in the Constitution. However, Roe, Griswold, and several other landmark Supreme Court cases, such as those pertaining to interracial marriage and same-sex marriage, were all decided on the grounds that Americans could make certain decisions for themselves without government interference. In the leaked draft opinion, Alito remarks that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Cohen says that by that logic, many other civil liberties and resources may also be at risk of being taken away — and that includes birth control access. “Pointing specifically at the right to privacy and saying ‘this isn't in the Constitution’ — and under his view, things that are not explicitly in the Constitution shouldn't be protected by the court — really puts a target on Griswold v. Connecticut and the right to access birth control,” Cohen says.
This controversy around the right to privacy isn’t the only reason birth control access may be threatened if the Supreme Court strikes down Roe v. Wade. As Torres-Spellicsy points out, there are anti-abortion lobbyists who incorrectly consider IUDs and other forms of contraception as abortifacients, or substances that induce miscarriage. (If that sounds familiar, that’s because it’s the logic behind a lot of prior court cases about whether employer-provided insurance should cover contraception, including Burwell v. Hobby Lobby in 2014.) “Some parts of the religious right are determined to force their view of sexual morality on all Americans,” Torres-Spellicsy says. “Sadly they have eager allies on the Supreme Court who have the power to enshrine their narrow views on the nation through the guise of constitutional law.”
So what can you expect if Roe is actually overturned? When it comes to abortion, access and legality would return to a state-by-state patchwork similar to what existed pre-Roe. According to Cohen, states could then seek to challenge Griswold by attempting to restrict or ban birth control and emergency contraception on the grounds that the Constitution doesn’t protect a right to privacy — which is effectively what the Supreme Court would be implying if they overturned Roe.
“It would play out similarly to the way abortion rights are going to play out,” Cohen says. “After [any hypothetical decision to overturn Griswold] comes down, it would get rid of the federal constitutional right and it would then be dependent on the states. You might not necessarily see as many states stepping up to ban birth control as are currently banning abortion, but it definitely would leave a lot of people throughout the country without access to care.” States like Louisiana, Tennessee, and Mississippi are already eyeing potential restrictions on certain types of birth control and emergency contraception. Still, Cohen emphasizes that banning abortion would not automatically ban birth control, but rather create a legal map for how politicians could attempt to ban contraception.
If these and other states do pass laws restricting birth control access, they will likely be challenged in court — and may ultimately land in the Supreme Court, just like the abortion ban in Mississippi that prompted Alito’s leaked draft opinion. If the Supreme Court no longer upholds the implicit right to privacy that was the basis for Roe v. Wade, it’s possible that the court — if it chooses to hear a birth control case in the future — could overturn cases like Griswold and give states the chance to regulate contraception access.
Ultimately, Cohen says, ”people should be conscious of [this potential threat to birth control access] when they're looking at who is up for election in their areas.” After all, if Roe is overturned, decisions on abortion access — and potentially other forms of reproductive health care, like birth control — would largely be made at the state level, so it’s important to know who your local lawmakers are and where they stand.