Following the bombshell release of a draft decision showing a majority of US supreme court justices may overturn Roe v Wade, legal experts believe other laws about individual autonomy may be in danger, including the right to access contraception.
Laws broadly banning abortion may also prohibit certain forms of birth control that opponents incorrectly say are working as abortion-causing medications. And the supreme court decision underpinning the right to access contraception, Griswold v Connecticut, could also come under fire in much the same way as Roe did.
“If this [draft] opinion becomes the opinion of the court, Griswold is imperiled – no question,” said Wendy Parmet, faculty co-director for the Center for Health Policy and Law at Northeastern University.
Justice Samuel Alito, in his draft decision, argues that Roe is a faulty law. Roe is based on the 14th amendment, as are decisions like Obergefell v Hodges on same-sex marriage, Loving v Virginia on interracial marriage, and Lawrence v Texas on consensual sex.
“The opinion doesn’t read like Roe was a wrongful tangent of the foundation” within the 14th amendment, Parmet said. “It really reads like the foundation was inappropriate and unfounded. So judges are going to find it hard to make the distinction with contraception.”
While Alito expressly states that similar laws are safe because they are not about “moral” issues as he says abortion is, there’s no reason the same logic couldn’t be applied to other legal decisions, experts say.
“If the draft becomes the real opinion, all of those issues – contraception, consensual sex and marriage rights – certainly are all at risk,” said Priscilla Smith, lecturer on law and reproductive justice at Yale Law School. “They have definitely left the door wide open.”
The right to abortion is not explicit in the constitution, Alito argues in the draft. (That’s partly because at the time of the framing, abortion was legal in the US before “quickening,” when the movements of a fetus are first felt.) Similarly, contraception is not mentioned specifically in the constitution, so strict interpretations of rights could exclude it.
“There are a lot of decisions that follow from the idea of a constitutional right to privacy,” Parmet said. “Once you throw down the best-known decision in that category of cases, every single other case is now up for grabs.”
The right to access contraception may not be challenged on its own, but it could be taken up under strict abortion laws – both new laws being introduced as well as older state laws on the books prior to Roe.
Anti-abortion advocates have argued incorrectly that certain birth control methods, such as Plan B and certain intrauterine devices (IUDs), work as abortifacients because they may prevent the implantation of fertilized eggs. But there is no pregnancy without implantation, so these medications cannot terminate pregnancies.
Even so, it’s “definitely possible” that some states may criminally prosecute people who provide contraception that they claim are abortifacients, Smith said, “because there are definitely states that would like to ban abortion from the moment of conception, which means before fertilization, before pregnancy”.
Some states could take these measures further to ban other forms of contraceptives.
“There’s definitely going to be a huge push by the anti-abortion world to take this as far as they can,” Smith said.
“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. The use of contraception gets in the way of that.”
Nationally, anti-abortion advocates are “setting the stage not just for a reversal of protections for abortion, but also for protection for the right to fetal life – the fetus being a person with a right to life guaranteed under the constitution,” Smith said.
“That’s where we’re going if things don’t change.”
