Today marks the 57th anniversary of the Supreme Court’s decision in Griswold v. Connecticut, a constitutional precedent even older than Roe v. Wade. But last month, we saw that just because a precedent has been around a long time, it doesn’t mean it will be protected by the current Supreme Court. The Court’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization revealed the majority’s intent to overturn Roe after nearly 50 years..
As bad as the news is for abortion access and the protections Roe offers, the leaked draft opinion coupled with other recent events show that the anti-abortion movement will not stop at ending a constitutional right to abortion. Birth control is squarely within their sights as well. Senator Marsha Blackburn (R-TN) said the quiet part out loud when she called Griswold v. Connecticut “constitutionally unsound” during Judge Ketanji Brown Jackson’s recent Supreme Court confirmation hearings.
Griswold isn’t a case that is discussed on the daily the way Roe is. A quick reminder – Griswold is a 1965 case that challenged a Connecticut law prohibiting the use of contraception. Early challenges to the law were dismissed for lack of standing. Estelle Griswold, the Executive Director of Planned Parenthood League of Connecticut, and a physician volunteer opened a birth control clinic in New Haven, in open opposition to the law. They were arrested, tried, and found guilty, and fined. Their convictions were upheld by the state courts and the case eventually went to the Supreme Court.
In a 7-2 decision, the Supreme Court invalidated Connecticut’s law as it applied to married couples, finding “marital privacy” to be an implied fundamental right. Justice Douglas wrote that the marital right to privacy was even older than the Constitution. Six years later in Eisenstadt v. Baird, the Supreme Court struck down bans on birth control as applied to all couples under the Equal Protection Clause of the Constitution. In fact, the Eisenstadt and Griswold decisions are fundamental to many Supreme Court decisions that shape the world we live in today, including cases protecting LGBTQ+ rights as well as abortion.
Senator Blackburn’s statement about Griswold is horrifying – if Griswold were overturned, the United States could be plunged back into the days of “crimes against chastity.” Birth control was a federal crime under the Comstock Act – contraceptives were defined as obscene and illicit and it was a federal offense to disseminate birth control through the mail or across state lines – is this starting to sound familiar?
In 1999, the Centers for Disease Control called family planning one of the greatest accomplishments of the 20th century. The development of effective contraceptives meant that people could plan pregnancies, space births, and have overall better health. The benefits were not just health – women had greater employment opportunities, building power and wealth that had been impossible for the generations that came before. Contraception continues to help millions of people and their families in the US and around the world.
It may seem extreme to start sounding the alarm on access to contraception, but the attacks have already been underway for some time. Numerous employers and school systems have fought against the requirements to cover contraception in the Affordable Care Act. States like Texas and Missouri have tried to prevent providers like Planned Parenthood from being able to provide family planning services. And now states are looking to conflate pregnancy with conception and threaten access to common forms of birth control like Plan B and copper IUDs.
For the record, contraception works by preventing pregnancy, but we have seen the same sort of carve outs and objections applied to birth control that have also been applied to abortion. It’s not the science or the mechanism of action that is at issue here – it’s the desire to control people’s bodies and personal decisions. And so, it is unsurprising that questions at the recent confirmation hearings went beyond Roe to Griswold and even to recent cases like Obergefell v. Hodges which allows LGBTQ+ people to marry and is part of the line of cases finding a fundamental right to privacy and liberty.
Opponents of abortion point to parts of the leaked opinion that purport to limit the upcoming Dobbs decision to just abortion. Don’t believe that for a second. This is the same crowd that has long talked about leaving abortion to the states, but in the same breath as soon as the opportunity arose said they will advance a nationwide ban.
This month, abortion access will fundamentally change in the United States. The stakes could not be higher for abortion, but they are also high for so many other liberties that we hold dear and that shape our lives and the lives of those we love every day. At PRH we will continue to speak out for abortion AND contraception AND the ability to live our most authentic lives with our loved ones.
VP of Public Policy & Strategic Partnerships