Supreme Court decision suggests the legal right to contraception is also under threat

Over the past half century, Roe v. Wade has been a bedrock of constitutional rights extending beyond abortion. The Supreme Court decision overturning this ruling, issued Friday, makes clear that those other rights founded on the same principle of privacy, including gay sex, same-sex marriage, interracial marriage, and the freedom to use contraception, are now also called into question.

Writing for the majority in Dobbs v. Jackson, Justice Samuel Alito states that “​​nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” ​​But, in a solo concurring opinion, Justice Clarence Thomas explicitly calls on the Court to overturn other such constitutional rights.

“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote, referring to the Supreme Court cases that found a privacy-enshrined right to contraception, sexual contact with someone of the same sex, and same-sex marriage. Thomas, who is Black, did not explicitly mention interracial marriage in his statement, though the Supreme Court ruling, Loving v. Virginia, is founded on the same legal principle.

In their dissenting opinion, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan spell out the implications:

“The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception…In turn, those rights led, more recently, to rights of same-sex intimacy and marriage.”

The idea that Dobbs doesn’t threaten these rights doesn’t hold up, they add. The stated rationale for the Dobbs ruling is that the right to abortion is not “deeply rooted in history,” which could be arguably apply to several other privacy-based rights, state Breyer, Sotomayor, and Kagan.

“So one of two things must be true,” they wrote. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure.”

Griswold v. Connecticut, decided in 1965, found that a Connecticut law preventing married couples from using drugs or medical instruments to prevent conception was unconstitutional. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship,” wrote Justice William O. Douglas. If this ruling, like Roe, was overturned, then states could criminalize even basic contraception.

The Supreme Court’s ruling will create a cascade of reactions and intense legal and political conflict. President Biden announced Friday that he has told the Health and Human Services Department to make sure both contraceptive medication and mifepristone, a medication used to induce abortion, are available “to the fullest extent possible.” He also said he would defend the right to travel to different states for abortion access, but didn’t specify the measures that would be used to safeguard these rights.

The Biden administration could make the case that the Food and Drug Administration’s existing ruling on contraception as safe and legal medication preempts any state restrictions. “Under the doctrine of preemption, federal law displaces conflicting state laws on matters that fall within federal authority, such as products in interstate commerce,” Rebecca Reingold, associate director of the Health and Human Rights Initiative at Georgetown University’s O’Neill Institute, wrote in an email to STAT. “However, as this would be a largely novel legal strategy, it is likely to face legal challenges, and it is unclear how exactly it would play out in the courts.” Under this strategy, the Department of Justice could call on courts to intervene on states that tried to limit access to contraception — and the same approach could conceivably be used to challenge states that block the use of FDA-approved abortion medication. But it’s uncertain whether this method would hold up. Future presidents could also use the same process to reverse this policy, added Reingold.

Some anti-abortion groups have said that, for them, Dobbs won’t affect general access to contraception. The Michigan Catholic Conference, which has argued that employers shouldn’t have to cover employee birth control in medical plans, told Michigan Public Radio it “has never sought to prohibit contraceptive use among the general public in state law.”

From a legal perspective, though, there is a serious risk of the right to contraception being reversed, Reingold said.  “Advocates of restrictions on access to contraception may argue that the right to contraception similarly ‘destroys a potential life,”” she said, meaning that even if other privacy-based rights remain intact, contraception is especially vulnerable.

Without a Supreme Court ruling to protect access to contraception, states could legally ban contraception and criminalize the health care professionals who provide them. Emergency contraception, such as the morning-after pill, and intrauterine devices (IUDs) are particularly under attack.

“Lawmakers in some states, like Idaho, have already indicated a willingness to introduce bills banning emergency contraception and/or IUDs,” Reingold said. “Others, in states like Missouri, have attempted to cut Medicaid funding for emergency contraceptives and IUDs through Planned Parenthood. It is not hard to imagine the next battleground related to the provision of reproductive health services involving state-level bans on these two types of contraceptives in particular.”

Overturning Roe v. Wade is a monumental decision in its own right. But, as the legal decision makes clear, the implications are likely to expand, based on the Court’s new interpretation of the constitutional right to privacy.