Talking Points

If Roe v. Wade falls, is birth control next?

Are Republicans coming for your birth control pills?

Even in an era where abortion rights are looking shaky, it might seem alarmist to suggest so. But last week three GOP candidates to be Michigan's next attorney general said they believed that Griswold v. Connecticut — the 1965 Supreme Court decision that said contraceptive purchases were shielded by a right to privacy — was wrongly decided.

"This case, much like Roe v. Wade, I believe, was wrongly decided because it was an issue that trampled upon states' rights," said former Michigan House Speaker Tom Leonard. "It was an issue that should have been left up to the states."

Yikes.

Two of the candidates (including Leonard) walked back the issue this week, saying they have no interest in actually banning birth control. And let's be fair: Most Republican politicians probably don't want to poke that particular hornet's nest — vast majorities of Americans routinely say they think that birth control is both important and morally acceptable. We're not living in the world of 1965 anymore.

It's also true, though, that Griswold has long been a bete noire of conservatives, who see it as a foundation for the Supreme Court's later Roe v. Wade ruling guaranteeing abortion rights.  "It is not a very long leap at all from consequence-free sex as a constitutional right, and birth as a burden to be avoided when one so chooses, to the epidemic of abortion in which we now find ourselves," National Review's Declan Leary wrote in 2019. A decade ago, GOP presidential candidates Mitt Romney and Rick Santorum both criticized the ruling during a debate. That same year, the late Justice Antonin Scalia declared that "there is no right to privacy." 

Indeed, the right to privacy isn't explicitly written in the Constitution. Instead, Griswold inferred it (in part) from the Ninth Amendment — which sensibly but somewhat ironically spells out that not all rights are spelled out in the Constitution. So it's good to note that President Biden is very focused on Ninth Amendment jurisprudence as he contemplates appointing a replacement for Supreme Court Justice Stephen Breyer. "All the amendments mean something," Biden said earlier this month, "including the Ninth Amendment."

Whether the current Supreme Court agrees is an open question. The recent ascendance of the court's 6-3 conservative supermajority means a lot of seemingly settled precedents — on voting rights, religious freedom and other contentious issues — might actually be unsettled. It seems like everything is up for grabs. Does that list include the ruling that guaranteed the right to birth control? We might find out sooner than we like.