The news broke that the United States Supreme Court had voted in overturn Roe v. WadeThe 1973 ruling, which legalized abortionMany people across the country began to panic and stock up on contraceptives.
National pharmacy chains Rite Aid and CVS have had to restrict the number of emergency contraceptive tablets that customers can buy due to hoarding. Although panic buying may seem like a rush to buy toilet paper during the pandemic, there is a much more serious and real threat. In Justice Clarence Thomas’ concurring opinion on the case of Dobbs v. Jackson Women’s Health OrganizationHe suggested that SCOTUS revisit precedents that codified same sex marriage, same sex relationships, and the right to contraception.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, Obergefell,” Thomas wroteIn the opinion. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”
Notably, the majority opinion stated the logic used to overturn Roe v. Wade — that the U.S. Constitution doesn’t guarantee the right to abortion access — only applied to abortions. David S. Cohen, a professor of law at Drexel University’s Kline School of Law, emphasized to Salon that right now the targets put on other rulings are just Thomas’ opinion, but that he’s right: the same reasoning could be applied to cases like Griswold v. ConnecticutThis precedent helped to establish the right of contraception.
Thomas cites the He Griswold vs. Connecticut case, which was decided by the Supreme Court in 1965. It stated that married couples have the legal right to obtain contraceptives. This ruling determined that a state’s ban on the use of contraceptives violated the right to marital privacy. Despite the ruling, unmarried women still didn’t have the constitutional right to obtain contraceptives until the Supreme Court’s 1972 decision in Eisenstadt v. Baird — in 1965, 26 states prohibited birth control for unmarried women. But Griswold vs. ConnecticutLegal contraception was made legal in the 1970s. Its repeal could have an impact on accessing birth control.
Indeed, this is why some law professors fear that Thomas’ opinion could send a message to lower courts that the same logic could be applied.
“I think that what Justice Thomas is doing is really signaling to the lower courts what his position is, and so when judges that have conservative ideology are faced with this issue, they are likely to be persuaded by Justice Thomas’s reasoning that this opinion really calls into question a lot of different rights,” Seema Mohapatra, an Anderson Foundation endowed professor of health law at Southern Methodist University, told Salon. “Whether it’s the right to marriage equality, contraception or right to engage in sexual relations with whoever you wish in your home on home, but I do think that the first test is going to be on contraception, just because we’ve seen this before.”
“I do think the justices in the majority here have a radical conservative view of the law, and there’s no principled way to distinguish GriswoldFrom Roe in terms of its reasoning,” Cohen said. “And so now having overturned Roe, there’s no doubt that Griswold is at risk.”
But how would it look? Much would depend on the case. Griswold’s precedent contained.
“If this [Griswold] is struck down on a federal level, similar to the abortion cases, it’s going to go to the states,” Mohapatra said. “But it will have certain impacts.”
In the event that GriswoldCohen and Mohapatra both agreed that the country could see conservative states impose restrictions or bans on contraceptives, such as Plan B and intrauterine devices (IUDs), unless this is reversed. Similar to restrictive abortion bans, which penalize providers, the country could see bans punishing physicians or pharmacists who dispense contraceptives to certain demographic groups.
“I would not be surprised at all to see contraception being the next the next frontier, and I don’t necessarily think it’s going to be a state legislator saying ‘We’re going to ban contraception,’ it’s going to be wording that is so vague and broad,” Mohapatra said. “And then we could have cases where pharmacists are refusing to dispense certain medications because they feel like this is akin to abortion or against the law.”
Some states already have restrictions on emergency contraception such as Plan B. Six states have restrictions on pharmacists dispensing Plan B to patients if they violate their religious or moral freedom. according to the Guttmacher Institute. But even without GriswoldSome contraceptives may be canceled if they are not overturned. In fact, some state legislators are reportedly considering restricting birth control methods. In Missouri, Saint Luke’s Health System will no longer provide emergency contraception due to fears it might put medical personnel at risk, according to The Kansas City Star. Notably, the state’s abortion ban does not include exceptions for rape or incest.
“I think Plan B and IUDs are likely the ones states may target because they prevent implantation and fertilization,” Mohapatra said. “There are some who consider them abortion inducing — although that is not scientifically accurate.”
Cohen agreed that the consequences for overturning the decision would be devastating GriswoldDepending on the case, Griswold may be called upon.
“If the case involves a state ban that human life exists at fertilization, not even implantation, so under that definition, someone goes after someone for having an IUD, and a prosecutor goes after someone for having an IUD because that stops implantation, then that case would be just about IUDs,” Cohen said. “Would the rule say that a state that bans IUDs, that’s perfectly constitutional, or would they say that all contraception can be banned? I don’t know.”
Cohen said he doesn’t think we are at a point where even the most conservative state would outlaw all contraceptives.
“Even the craziest anti-abortion states like South Dakota and Missouri, I don’t think they’re banning contraception across the board,” Cohen said. “But could they have banned Plan B, or they’re gonna ban IUDs? I could see that, and if the Supreme Court takes what it said on Friday seriously, then there’s no way for it to say there’s a right to IUDs or Plan B that’s deeply rooted in the history of the Constitution, and they would have to allow states to do that.”