After Roe v. Wade Vote, Access To Contraception Could Be Under Scrutiny
Last night, Politico obtained an initial draft majority opinion written by Justice Samuel Alito which revealed the Supreme Court will likely strike down Roe v. Wade. If Alito’s opinion prevails, abortion will be immediately illegal in the 13 states that currently have abortion bans already on the books. The wording of Alito’s opinion has some experts worried that access to contraception could also be restricted in the future.
Previous debates about abortion rights typically involved the rights of the unborn fetus. Roe v. Wade granted American women the right to an abortion in the first two trimesters of pregnancy, with some restrictions allowed in the second trimester. In Planned Parenthood v. Casey in 1992, the Court overturned this trimester framework in favor of a viability analysis. In other words, restrictions on abortions could be applied if the fetus could survive outside the womb.
What’s different about the current opinion is the debate no longer centers around the rights of the fetus. Instead, Alito’s rationale for overturning Roe stems from the fact that abortion isn’t mentioned in the Constitution. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito writes. His argument is why some suggest that the right to contraception could be next.
On the Rachel Maddow Show, constitutional scholar and Congressman, Jamie Raskin explained that the original Roe decision was based on a 1965 Supreme Court case, Griswold v. Connecticut, which struck down a law that banned birth control. In that case, the Supreme Court said that individuals had a right to privacy over intimate decision-making.
“We know, there is a right-wing war on contraception now, but if Casey is to fall, if Roe v. Wade is to fall, then Griswold v. Connecticut, presumably, is to fall as well, because the word ‘contraception’ or ‘birth control’ doesn't appear in the Constitution. Indeed, the phrase ‘right to privacy’ doesn't appear in the constitution. So this would appear to be an invitation to have Handmaid's Tale type, anti-feminist regulation and legislation all over the country,” Raskin told Maddow.
Raskin is not alone in believing that access to birth control is in jeopardy, others are weighing in as well. Congresswoman Barbara Lee, in a tweet initially written on April 25 but retweeted after Politico’s report, wrote “PSA: if Roe falls, your constitutional right to birth control will also be in jeopardy. This has never just been about abortion. It’s about controlling & criminalizing our bodies.”
And on April 4, Colorado governor Jared Polis signed a bill into law Monday codifying the right to abortion and contraception in the state. It seems unlikely contraception would be included if the state weren’t bracing for the possibility that the U.S. Supreme Court could overturn access to birth control as well.
Allowing women access to family planning isn’t just a family issue, it has repercussions for women’s careers and incomes. Harvard economists, Claudia Goldin and Lawrence Katz assessed the impact birth control has had on women’s careers. They write, “In 1960, 18.4% of professionals were women, as were 4.7% of ‘high-powered professionals.’ By 1998, 36.4% of professionals and 25.1% of the high-powered subset were women.” The researchers attribute a great deal of this increase to women’s access to the birth control pill. They argue that access to reliable contraception provided women the ability to invest in their education and careers. They write, “The ratio of women relative to men in professional programs began its rapid ascent in 1970, just as the first pill cohorts graduated from college.” These economists say there is another factor that also likely influenced these advances for women—access to abortion.
Another study found a direct link between access to contraception and a woman’s salary. Women who had access to legal contraception beginning at ages 18 to 21 made 5% more per hour and 11% more per year by the time they were 40. Once again, the study authors suggest that having access to birth control such as the pill allows women to delay having children, which means they can invest more in their education and choosing an occupation.
We don’t know what the Court’s final opinion will look like, but if it looks like the leaked draft then it represents a major setback for women’s rights as well as women’s advancement at work.
Elsesser, K. (2022, May 4). After Roe v. Wade Vote, Access To Contraception Could Be Under Scrutiny. Forbes. https://www.forbes.com/sites/kimelsesser/2022/05/03/after-roe-v-wade-vote-access-to-contraception-could-be-under-scrutiny/?sh=41fc84dc66a2