What will happen to birth control if abortion is banned? It’s also endangered

Although the Supreme Court has repeatedly affirmed the right to access abortion treatment in the past, it may be on the verge of overturning Roe v. calf — that is, if a leaked draft opinion penned by Judge Samuel Alito becomes a reality. On May 2nd, in an unprecedented break, Politically released a copy of a draft majority opinion in the pending case Dobbs vs. Jackson that would overrule two landmark abortion rights cases: 1973 roe and 1992s Planned Parenthood vs. Casey. The leak immediately sparked concerns not only about the future of access to abortion, but also possible restrictions on birth control and contraception. So what happens to access to birth control if abortion is banned? It’s a slippery slope.

There’s a reason people are worried: despite assurances in the draft opinion that the ruling would do so only tip over roe, many people across the ideological spectrum see abortion as inextricably linked to contraception. “The same political movement that wanted to overthrow roe also has ideological issues with birth control,” Cathren Cohen, a legal and political scientist at the UCLA Law Center on Reproductive Health, Law, and Policy, told Elite Daily. “Any efforts to limit abortion treatment will inevitably limit other forms of reproductive health care. An anti-abortion legislature — in efforts to invalidate planned parenthood or siphon funds away from comprehensive reproductive health care — will empower the same group of people who want to restrict birth control, or at least just take resources away from people who offer birth control, especially in the frame by government programs and for low-income and underinsured people.”

From a practical standpoint, Cohen says, anti-abortion legislators in states like Louisiana “have misdefined what an abortion is to include the way some IUDs and emergency birth control work, even though these aren’t abortions.” Louisiana bill that sought to classify abortion as homicide and define life as beginning “at conception” passed a committee in the state House of Representatives before the bill’s sponsor pulled it from debate May 12. That bill may have stalled for now, but Axios says Louisiana is one of at least 13 states that have “trigger laws” banning abortion; These laws would take effect automatically if the Supreme Court overturned Roe v. calf.

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Ciara Torres-Spelliscy, a law professor at Stetson University, also told Elite Daily that the draft implicitly challenges Americans’ right to privacy, setting a dangerous precedent.

“Part of [the 1965 case] Griswold vs. Connecticutthat gave married women the right to contraception is based on the right to privacy, which also draws in part on the due process clause of the 14th Amendment,” says Torres-Spellicsy. In 1972 the Supreme Court extended the same right to unmarried persons Eisenstadt v. Baird Verdict. “If the Supreme Court rules that the right to an abortion is not covered by a substantive due process, logically the right to birth control could be next.”

The right to privacy is never explicitly mentioned in the Constitution. However, roe, Griswold, and several other landmark Supreme Court cases, such as interracial marriage and same-sex marriage, were all ruled on the grounds that Americans could make certain choices for themselves without government intervention. In the leaked draft opinion, Alito notes that “there is no reference to abortion in the Constitution and no such right is implicitly protected by any constitutional provision.”

Cohen says that following this logic, many other civil liberties and resources are also at risk of being taken away — and that includes access to birth control. “To be explicit about the right to privacy and to say ‘that’s not in the Constitution’ – and in his view, things that aren’t specifically in the Constitution shouldn’t be protected by the court – is really a goal Griswold vs. Connecticut and the right to access birth control,” says Cohen.

This privacy right controversy isn’t the only reason birth control access could be threatened if the Supreme Court strikes down Roe v. calf. As Torres-Spellicsy points out, there are anti-abortion lobbyists who mistakenly view IUDs and other forms of birth control as abortifacients or substances that induce miscarriage. (If that sounds familiar, that’s because it’s the logic behind many previous court cases about whether employer-provided insurance should cover contraceptives, including Burwell vs. Hobby Lobby in 2014.) “Some sections of the religious right are determined to impose their view of sexual morality on all Americans,” says Torres-Spellicsy. “Unfortunately, they have zealous allies on the Supreme Court who have the power to enshrine their narrow-minded views of the nation under the guise of constitutional law.”

So what can you expect when roe actually turned over? When it comes to abortion, access and legality would return to a patchwork quilt from state to state much like it was beforeroe. According to Cohen, states could then seek to limit or ban birth control and emergency contraception on the grounds that the Constitution fails to protect the right to privacy — which is what the Supreme Court would basically imply if they were overturned roe.

“It would play out in a similar way to abortion rights,” says Cohen. “Once that decision is made, it would overrule federal constitutional law and would then be dependent on the states. You might not necessarily see as many states banning birth control as currently ban abortion, but it would definitely leave many people across the country without access to medical care.” States like Louisiana, Tennessee, and Mississippi already have possible restrictions on certain species of contraception and emergency contraception.

If these and other states pass laws restricting access to birth control, they’re likely to be challenged in court — and could ultimately end up in the Supreme Court, just like Mississippi’s abortion ban that prompted Alito’s leaked draft opinion. When the Supreme Court no longer upholds the implicit right to privacy that was the basis for Roe v. calfis it possible that the court — when hearing a birth control case in the future — could overturn cases like Griswold and allow states to regulate access to contraceptives.

Ultimately, according to Cohen, “people should be aware of this [this potential threat to birth control access] when they look at who’s running for election in their district.” Still, if roe is repealed, decisions about access to abortion – and potentially other forms of reproductive healthcare, such as birth control – would be largely made at the state level, so it’s important to know who your local lawmakers are and where they stand.

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