By Aria Bendix — NBC News
The Supreme Court’s decision to overturn Roe v. Wade could pave the way for states to restrict access to some contraceptives, according to two legal experts.
Before Friday, 13 states had activated laws designed to take effect and ban abortion after Roe’s repeal. These bans are already in place in Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, and South Dakota, and are expected to be in place soon in Mississippi, North Dakota, Utah, and Wyoming. Bans in Idaho and Tennessee could follow in 30 days, and Texas soon after.
“States that try to limit abortion from the moment of conception — not even from the moment of pregnancy, as the medical profession would define it — could try to challenge Plan B, emergency contraception, and potentially even IUDs. [dispositivos intrauterinos]said Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University.
These forms of birth control might be an easier target for restrictions than traditional birth control pills, she added, because they prevent implantation — when a fertilized egg attaches to the uterus — as well as fertilization. For that reason, some people already consider them abortion-inducing drugs.
The Supreme Court’s decision does not directly affect access to contraceptives. Rather, experts anticipate that states, counties or even individual prosecutors who want to ban emergency contraceptive pills or IUDs may now feel they have the “wind in the Supreme Court’s favor,” Parmet added.
Justice Clarence Thomas on Friday even suggested that the highest court should “reconsider” previous rulings, including Griswold v. Connecticut, a 1965 case that gave married couples the right to purchase and use contraceptives. The majority opinion, however, said the decision should not call into question other precedents.
Is birth control under threat?
Thomas expressed his skepticism in his opinion about the doctrine of substantive due process, which refers to the power of the court to protect certain rights, even though they are not explicitly named in the Constitution. Contraception falls into that category.
“I can assure you that in the 18th century, when the Constitution was written, women were not part of the body politic. They didn’t vote. They were not at the table suggesting changes,” said Khiara M. Bridges, a law professor at the University of California at Berkeley.
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Therefore, the Supreme Court has a wide margin of maneuver to interpret how the Constitution could have addressed access to contraception, he added.
“It is the full implications of the Dobbs decision that make us reasonably fearful about the accessibility of contraception in the future,” Bridges said.
The more immediate question, however, is whether it can be argued that current abortion bans also cover contraceptive methods that prevent pregnancy after fertilization.
“I wouldn’t be surprised if some local prosecutor, whether he’s a staunch believer or a headline seeker, tries to make a name for himself by trying to go after some Planned Parenthood doctor or clinic for violating state abortion law by handing out emergency contraception,” Parmet said. .
From there, he added, we could “see copycat trials” if that legal effort is successful.
It’s also possible, Bridges said, that some states may try to classify Plan B or IUDs as abortifacients by interpreting decades-old anti-abortion laws that may now go back into effect.
“A legislature could proactively make it clear that when they say abortion, they mean all devices that prevent implantation,” Bridges said.
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A signal from the Supreme Court to the states
Parmet does not expect Griswold v. Connecticut is immediately challenged, nor is the ban on birth control widespread.
“I don’t think a legislature would rush to accept the elimination of all contraceptives,” he said.
But Bridges said recent high court decisions have sent a message to conservative state lawmakers.
“If the GOP decides it wants to limit contraception now, the Supreme Court has given essentially every signal in the world that it won’t stand in their way,” he warned.
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In Parmet’s view, the court has indicated that it is “willing to override precedent with abandon.” And in doing so, he added, the judges have raised questions about the future of other long-established rights.
“The Supreme Court just unleashed today — what’s the cliché of the moment? Pandora’s box? A can of worms? Parmet said, “if they thought they were settling the controversy, if they thought they were clearing things up, they just made a lot of things much more uncertain.”
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