Does the Recent US Supreme Court Decision on Abortion Put the Right to Contraceptives at Risk?

We have been talking a lot about the ramifications of the recent Supreme Court of the United States (SCOTUS) decision on the Dobbs versus Jackson Women’s Health Organization abortion case. This decision regards a Mississippi law prohibiting abortions after 15 weeks gestation that ended up, not only upholding the Mississippi law, but also overturning the Roe V Wade decision of 1973. Written by Associate Justice Samuel Alito, and supported in full by Associate Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the new decision reverses the 1973 recognition that abortion falls within the realm of privacy guaranteed by the Due Process Clause of the 14th Amendment of the US Constitution. This means that individual US states technically can enact laws prohibiting and severely restricting abortion within their borders, although the United States Department of Defense has already announced that abortion care for military personal and their families, and for civilian contractors working, will continue at military health facilities regardless of the laws enacted in states where they are located. In the wake of the Dobbs decision, you may heard or read analyses on the news in which legal experts have suggested or asked whether the decision means that the SCOTUS may now go after other privacy rights that have been protected under the same reasoning as the Roe protection of abortion.

The answer, unfortunately, is yes.

These privacy issues include homosexuality, gay marriage rights, and the right to use contraceptives. Given the focus on pregnancy and related matters here on The Pulse, the emphasis of today’s post is on contraception and why it is in danger, at least of a potential assault from the SCOTUS, even if actual laws against contraception seem like they’d be ridiculously impractical to enforce, should any US state enact them.

But the right to use contraceptives to control your body stem from a case that we discussed when we first discussed Roe v Wade. This is a case that got to the SCOTUS in the 1960s, a case called Griswold versus Connecticut. Decided by the SCOTUS in 1965, Griswold v. Connecticut established that married couples had a Constitutional right to use contraceptives. The decision was reasoned based on “zones of privacy” provided by the Bill of Rights, specifically, the 1st, 3rd, 4th, 5th, and 9th Amendments, and on the Due Process Clause of the 14th Amendment applying such privacy protection to the states. Dovetailing with the legal framework set by the Griswold decision, Americans had been hearing about the thousands of babies born with horrible deformities to mothers who had taken thalidomide, an anti-nausea drug that had been licensed in the UK from 1958 to 1961. Also, the 1960s had seen an epidemic of rubella virus, causing congenital rubella syndrome, an awareness of which eventually led to an increase in the number of abortions in states where it was legal, and, for those who could pay, also where it was not legal. But meanwhile, oral contraceptives —the pill— had come on the scene in 1960. And yet, there were many states, including Connecticut, that had laws on the books prohibiting or restricting contraception.

In the article about Roe, I recounted for you an anecdote of how my mother, who lived in Connecticut, had been worried about a viral infection that had struck her during one of her pregnancies. This was prior to the Roe decision and prior to the availability of vaccination against rubella. It wasn’t rubella, but, concerned that it might be —for the rubella vaccine, that we are so fortunate to have now, would not become available until the end of the decade— she asked her obstetrician what she could do in such a case. The obstetrician had responded by saying something like, “Don’t worry. If it’s rubella, we’ll take care of you,” probably with a little wink.

In talking about this recently with my parents, it reminded my father about something else that was happening in Connecticut in the 1960s. According to him, purchasing condoms at a drug store in those days was done in secret. The pharmacist would hand them to you under the counter or something like that, because contraception wasn’t actually legal prior to the 1965 Griswold case.

Now in the majority opinion of the recent Dobbs case, Samuel Alito writes that, despite the reasoning for the other privacy issues mirroring the reasoning Roe that those other rights will not be taken away. He is referring to the concept of substantive due process, the basis of applying the Due Process Clause of the 14th Amendment to privacy issues. Alito ‘explains’ the contradiction basically by saying that abortion is murder (his religious belief), so it gets its own standard, in contrast with contraception and homosexuality. But in his written concurrence with the Alito opinion, Clarence Thomas says pretty much the opposite. He says that, in future cases, the SCOTUS may go after substantive due process as it has applied to the other privacy cases and names some of them, including Griswold v. Connecticut. So yes, the right to contraceptives use is caught in the crosshairs of this extreme SCOTUS.

David Warmflash
Dr. David Warmflash is a science communicator and physician with a research background in astrobiology and space medicine. He has completed research fellowships at NASA Johnson Space Center, the University of Pennsylvania, and Brandeis University. Since 2002, he has been collaborating with The Planetary Society on experiments helping us to understand the effects of deep space radiation on life forms, and since 2011 has worked nearly full time in medical writing and science journalism. His focus area includes the emergence of new biotechnologies and their impact on biomedicine, public health, and society.

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