A Supreme Court draft opinion that leaked last week revealed five votes, a majority, in favor of overturning the landmark decision in Roe v. Wade and ending the nationwide constitutional right to have an abortion. In the aftermath of the leak, fears have surfaced that the right to obtain birth control could be threatened too. It's a complicated subject, but we'll explain what it would take for that to happen -- if it happens at all.
, each state would make its own laws regarding abortion. The final Supreme Court ruling is expected in mid-to-late June, as the court's summer recess begins.
That ruling won't have any immediate effect on access to birth control. But experts suggest that the wording in the draft opinion hints at 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 would also 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.
Justice Samuel Alito maintains otherwise. In the draft opinion, he wrote, "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
What could happen if 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. The leaked draft in the current case, 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 if Roe v. Wade is overturned, other Supreme Court rulings based on a right to privacy would still stand. Challenges would 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 the access to birth control might be at stake
"Even though the draft document from Justice Alito stated that the ruling would only apply to abortion and not to any other reproductive rights, 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, as 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.
You still have reproductive rights
No one can rule out challenges down the road to reproductive rights. However, for now, Roe v. Wade still stands, and people in the US still have the right to have an abortion. There is a chance the Supreme Court may make changes to the draft decision that was leaked, though the direction of the ruling seems clear.
The information contained in this article is for educational and informational purposes only and is not intended as health or medical advice. Always consult a physician or other qualified health provider regarding any questions you may have about a medical condition or health objectives.