Birth Control Could be Next for SCOTUS

For those who have not closely followed the falsely name "Christian Right" for years and who have not read the line of Supreme Court rulings that established a right to privacy it may seem hard to believe that the right of married heterosexual couples to use birth control - contraception by another name - could be threatened, but as a piece at Salon lays out, the 1965 decision in Griswold v. Connecticut which laid the corner stone on which many of the following privacy cases - e.g., Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges - flowed has long been on the hit list for the Christofascists.  While the LGBT community has much to fear about the future given the extremists  who now control the Court, so do heterosexuals individuals, married and unmarried who take acess to birth control for granted. With the Court's apparent litmus test for rights being what rights were allowed/recognized in 1868, Griswold is potentially at risk of reversal as well.  Already Texas' ultra extreme attorney general is stating he would defend any effort to bring back the sodomy laws to criminalize gays and its not a stretch to see the right wing Republican controlled Texas legislature enacting a ban on contraception as an extension of its total ban on abortion.  Here are excerpts from Salon:

When news broke that the United States Supreme Court had voted to overturn Roe v. Wade, the 1973 ruling which had legalized abortion nationwide, many people began to scramble and stock up on contraceptives.

Hoarding over the last few days has now caused some national pharmacy chains like CVS and Rite Aid to limit the number of emergency contraceptive pills customers can purchase. While the panic buying might seem reminiscent of the rush to buy toilet paper in the early days of the pandemic, it comes with a more consequential and very real threat. In Justice Clarence Thomas' concurring opinion on the case of Dobbs v. Jackson Women's Health Organization, he opined that SCOTUS should revisit precedents that codified same-sex marriage, same-sex relationships and the right to contraception.

Notably, the majority opinion wrote that 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. Connecticut, which helped set the precedent for the right to contraception.

The Griswold vs. Connecticut case cited by Thomas was decided in 1965, when the Supreme Court said married couples have the 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. Connecticut paved the way for legal contraception in the 1970s, and so overturning it could certainly have an impact on access to birth control.

"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, but I do think that the first test is going to be on contraception, just because we've seen this before."

Cohen agreed.

"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 Griswold from Roe in terms of its reasoning," Cohen said. "And so now having overturned Roe, there's no doubt that Griswold is at risk."

But what would that look like? A lot would depend on what a case challenging 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 Griswold is overturned in the future, both Mohapatra and Cohen agreed the country would likely see conservative states place restrictions or bans on contraceptives like Plan B or intrauterine devices (IUDs). Similar to restrictive abortion bans that penalize the providers, the country could see bans that punish physicians or pharmacists for dispensing contraceptives to specific demographic groups.

Some states already have restrictions against emergency contraception like Plan B. In six states, pharmacists can refuse to dispense Plan B if it violates their moral or religious freedom, according to the Guttmacher Institute. But even without Griswold being overturned, some contraceptives are already at risk as some state legislators are reportedly weighing their options on restricting birth control methods, as Mohapatra said, falsely trying to argue certain methods are akin to abortion.

"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 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."

Those concerned about keeping everyday rights need to register to vote and vote Democrat in EVERY election to keep state legislatures from taking us back to the 1800's.