Will the Roe v. Wade Overturn Affect Birth-Control Access?
What the SCOTUS Roe v. Wade Decision Means For Birth Control
The Supreme Court's decision on Dobbs v. Jackson Women's Health has thrown into question the status of reproductive freedom in the US. The ruling officially overturns Roe v. Wade and leaves the legality and regulation of abortion up to the states, 11 of which have already made it illegal or heavily restricted just days after the SCOTUS decision.
The ruling has far-reaching and alarming implications, opening the door to challenging rights such as same-sex marriage and reproductive services like in vitro fertilization (IVF). (Both same-sex marriage and IVF currently remain legal nationwide; the Dobbs ruling only directly affects abortion.) Another right that may now come under threat: the right to birth control. The ruling doesn't affect contraception directly, and no one's access will be immediately impacted. But there's still be reason for concern.
The issue lies in the reasoning behind Justice Samuel Alito's majority opinion. The opinion takes aim at the right to privacy, which is the basis for several other rights that the Court has established over the years, including same-sex and interracial marriage as well as the right to contraception.
For context, the right to privacy is not explicitly mentioned in the Constitution, but it is implied based on the Supreme Court's previous interpretation of several amendments that "protect our freedom to make certain decisions about our bodies and our private lives without interference from the government," according to the American Civil Liberties Union. Notably, the Supreme Court first asserted the right to privacy in a 1965 ruling on birth control — Griswold v. Connecticut, which ruled that married couples have the right to contraception. It has since been used in Supreme Court cases like Roe v. Wade and Obergefell v. Hodges, the 2015 case that established the right to same-sex marriage.
"This decision [on Dobbs and Roe] is trying to set up a lot of other cases to be challenged, which would include things like contraception access . . . and marriage-equality rights," Gabriela Aguilar, MD, MPH, an ob-gyn in New York and a fellow with Physicians for Reproductive Health, says. "If we're challenging the right to privacy, it is a setup to potentially challenge access to contraception in the future." In fact, Justice Clarence Thomas laid the groundwork for such a challenge in his concurring opinion. "In future cases," he wrote, "we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence [which made same-sex sexual activity legal across the country], and Obergefell [which made same-sex marriage legal across the country]."
This decision, then, could serve as a "road map to overruling Griswold, because it calls into question the right to privacy," Georgetown law professor Neal Katyal wrote in an op-ed for The Washington Post. "That paves the way for states to ban the use of birth control." He goes on to demonstrate how a similar scenario could play out for same-sex marriage.
Not everyone agrees that access to birth control is at risk here. In the opinion, Alito wrote, "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion," setting up abortion as a unique issue because it involves a "critical moral question." Therefore, some experts say that issues like contraception are safe from being revisited. But others assert that the rationale used in the draft opens some dangerous doors. In response to questions about the opinion after a draft was leaked last month, President Joe Biden said that "it would mean that every other decision relating to the notion of privacy is thrown into question."
These are scary scenarios to think about, to say the least. Regarding birth control specifically, Dr. Aguilar says that there's no need to panic right now and stresses that the ultimate decision on Roe and Dobbs will not affect the right to birth control directly. Don't feel pressured into any decision on birth control — such as rushing to get a longterm reversible contraceptive like an IUD or an implant — just because of the potential consequences of a Roe v. Wade overturn.
"We don't want to be coercing people into using these long-acting, reversible contraceptive methods out of politically induced fear," Dr. Aguilar tells POPSUGAR. Those types of birth control are effective, but "they're not the right answer for everyone," she says. "And contraception should always be evaluated by an individual and their healthcare provider on a very personal basis."
The only action regarding your personal reproductive health that Dr. Aguilar recommends taking right now is to assess your reproductive needs and goals: "It would be the right time to think about important questions about whether or not you want to have a family or on what timeframe that would be." Consider having a conversation with your provider (and any other partners or family members you choose to include) to discuss your priorities and options for birth control and family planning.
It bears repeating: overturning Roe v. Wade has no direct effect on birth-control access or legality. The problem is that this ruling creates a path for future challenges to contraceptive access (as well as marriage equality). "While the Roe case specifically won't have anything to do with contraception," Dr. Aguilar says, "fundamentally, what these people are trying to do is remove bodily autonomy."
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