Over the past several decades, the number of birth control methods available in the United States has grown dramatically. Women today are faced with a dizzying array of new pills, implants, gels, and patches. However, the recent debate over a possible abortion ban also raises questions about whether states could tighten their regulation of contraceptives.
Laws prohibiting abortion can also restrict certain forms of birth control that opponents say are like “abortion-causing drugs.”
Contraceptives in danger. The leaked Supreme Court draft (which we’ve covered on Magnet before) that would overturn Roe v. Wade and abortion rights does not indicate that the Court would review past decisions on birth control. “We emphasize that our decision refers to the constitutional right to abortion and no other right,” Judge Samuel Alito wrote.
However, some legal experts have raised concerns that the argument for overturning Roe could be applied by justices to limit access to contraceptives. As a result, there are concerns that lawmakers could use the abortion ban to make birth control less available. And the Court’s decision upholding the right to access contraception, Griswold v Connecticut, could also come under fire in the same way Roe did.
Griswold vs. Connecticut. The Supreme Court ruling in Griswold v. Connecticut ushered in an era of change for sexual and reproductive rights in the US. By ruling that states did not have the right to prohibit contraception for married couples, the landmark decision in Griswold v. Connecticut first established a constitutional right to privacy regarding reproductive decisions that paved the way for the legalization of birth control for unmarried couples and, ultimately, Roe v. Wade and safe and legal abortion.
It signified the court’s belief that people should be free from unnecessary interference by the state and found that “the very idea of seeking contraceptives in matrimonial bedrooms is repulsive to notions of privacy surrounding the marital relationship”.
Why? If the draft goes ahead, Griswold would be in danger. Judge Samuel Alito, in his bill, argues that Roe is a flawed law. The right to abortion is not explicit in the constitution, he argues in the draft. And similarly, contraception is not specifically mentioned in the text, so strict interpretations of rights might exclude it. While Alito expressly asserts that similar laws are safe because they aren’t about “moral” issues like he says abortion is, there’s no reason the same logic couldn’t apply to other legal decisions, experts say.
The tendency. Has already started. The Louisiana state legislature this week advanced a bill that would classify abortion as homicide. Opponents of the proposal raised flags, saying the legislation could also technically criminalize some forms of birth control. “We’ve seen people falsely equate emergency contraception and IUDs with abortion,” said Mara Gandal-Powers, director of contraceptive access and senior adviser at the National Women’s Law Center.
Blake Masters, a Republican Senate candidate running on an anti-abortion platform in Arizona, also points to the case that established the right to access birth control on his campaign website. And as Idahoans plan for a future without abortion rights, a leading House Republican would support hearings on legislation banning abortion pills and morning-after pills. Brent Crane, R-Nampa, said he would hold hearings on legislation banning emergency contraception and abortion pills.
A battle far from over. The right to access contraception may not be called into question on its own, but it could be adopted under strict abortion laws, both new laws being introduced and older state laws on the books from before Roe. Anti-abortion advocates have incorrectly argued that certain birth control methods, such as Plan B and certain intrauterine devices (IUDs), work as abortifacients because they can prevent implantation of fertilized eggs. But there is no pregnancy without implantation, so these drugs cannot terminate pregnancies.
Still, it’s “definitely possible” that some states will criminally prosecute people who provide contraceptives they claim are abortifacient, because there are states that would like to ban abortion from the moment of conception, which means before fertilization. , before pregnancy. Some states might take these steps further to ban other forms of contraception.