The Supreme Court has overturned the landmark decision in Roe v. Wade which protected the constitutional right to have an abortion. Now states have the jurisdiction to establish laws on abortion access in place of federal protections.
Overturning fifty years of federal protections has sparked concerns that other privacy-related cases could be reversed, which would threaten the right to obtain birth control in the future. While this ruling does not immediately affect your ability to get birth control, experts say that the wording in the opinion leaves the potential for further challenges to privacy-related rights.
"By undermining the rationale behind Roe, namely that the right to abortion is protected under the Supreme Court's liberty jurisprudence, the draft opinion wouldalso erode the basis for the Court's decisions in Griswold (contraception), Lawrence v. Texas (same-sex intimacy) and Obergefell (same-sex marriage)," Priscilla J. Smith, director and senior fellow in the Program for the Study of Reproductive Justice at Yale Law School, said in an email.
Since the ruling, Justice Clarence Thomas wrote in a concurring opinion that the court "should reconsider" past precedents that establish the right to contraception, same-sex relationships and same-sex marriage. Birth control access after Roe v. Wade is a complicated subject to navigate, but we'll explain what we know.
What could happen now that Roe v. Wade is overturned?
The Supreme Court's 1973 ruling in Roe v. Wade rests on what the majority of justices at the time identified as a constitutional right to privacy. Dobbs v. Jackson Women's Health Organization rejects that right because the Constitution doesn't explicitly mention abortion or privacy. Thus, striking down Roe v. Wade sets up challenges to other protections based on the implied right to privacy.
This could specifically lead to challenges to the right to use birth control in upcoming months or years.
In the 1965 case of Griswold v. Connecticut, the Supreme Court ruled that married couples had the right to use birth control despite Connecticut's long-standing restrictions on contraception. In 1972, the right to use birth control was extended to unmarried people in Eisenstadt v. Baird.
Even now that Roe v. Wade is overturned, other Supreme Court rulings based on a right to privacy still stand. Challenges will have to wait for cases to enter lower courts and then proceed through appeals before potentially reaching the Supreme Court.
However, there are already attempts to tighten restrictions on emergency contraception, such as Plan B, and intrauterine devices (IUDs). Last year, for instance, a Missouri bill attempted to ban Plan B and IUDs from coverage under Medicaid. Plan B prevents the release of an egg and may prevent fertilization. Research suggests it likely does not work after fertilization or if the zygote has already implanted.
Why your access to birth control might be at stake
"Nothing would prevent SCOTUS from ruling subsequently on whether people have a right to birth control," Paula Tavrow, director of the Bixby Program in Population and Reproductive Health at UCLA, said in an email.
"For instance, they might decide that some people, such as adolescents or unmarried people, do not have the same rights to birth control as other people. Or that adolescents need to get parental approval before obtaining birth control," Tavrow added.
Presently, there are federal protections in place for people's right to obtain birth control, and it would take the Supreme Court agreeing to take a case that challenges such protections and ruling to overturn them for this right to disappear.
There is not an open Supreme Court case on the right to obtain birth control. However, market behavior may affect some birth control availability, at least temporarily.
In the days following the leak, Nurx, a telehealth company specializing in birth control, STI testing and HIV prevention, saw a 300% spike in requests for emergency contraception like Plan B. Such extreme increases raise the question of how available such birth control might be if Roe v. Wade protections are overturned.
After Donald Trump's 2016 election to the presidency, there was a spike in IUD implantations. Many women cited fears of limited access to contraceptives if the Trump administration repealed the Patient Protection and Affordable Care Act (ACA) as he'd promised. Concerns about post-Roe access to birth control may push the demand for birth control to outpace the supply available. Current access to birth control is already marked by barriers like insurance coverage and cost, which are amplified by the inequalities in health care.