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Will I Still Be Able to Get Birth Control?

By Steven Ellison, Esq. on May 16, 2022 3:09 PM

The public outcry about the leaked U.S. Supreme Court abortion opinion in Dobbs v. Jackson Women's Health Organization is unsurprising. Never before has a draft opinion from the Supreme Court leaked to the public. And, to say the least, reproductive rights are a controversial issue.

The draft opinion suggests that a majority of the Court believes that the cases that recognize a right to an abortion, Roe v. Wade and Planned Parenthood v. Casey, are "egregiously" wrong and should be overruled. If this happens, the abortion debate would return to the states.

People are concerned about what this might mean for other rights, including the right to use birth control. This concern, while understandable, would seem to be misguided. Although we explain the draft opinion elsewhere, here's why birth control specifically should be safe. Bear with us as we go through some case law.

Griswold v. Connecticut

Let's start with the case that recognized the right of a married couple to use birth control. In 1965, the Supreme Court ruled in Griswold v. Connecticut, a 7–2 decision, that the Constitution protects this right. The justices differed, however on where in the Constitution that right exists. In fact, they were all over the board.

Justice William Douglas wrote for the majority that while the Constitution does not expressly (in writing) protect a general right to privacy, the various guarantees in the Bill of Rights create "penumbras," from which a right to marital privacy "emanated."

Five justices agreed with the result, but for different reasons. Three justices disagreed with the penumbra argument but saw the right in the Fourth and Ninth Amendments. Two justices saw it in the 14th Amendment but disagreed between themselves about whether it was the "due process clause" that protected it.

Two justices dissented. They seemed to agree with the principle that the state had no business regulating what went on in the marital bedroom. Nonetheless, they felt that because the Constitution did not expressly create a right to privacy, the court should not recognize one.

Eisenstadt v. Baird

The result in Griswold is that seven justices believed that the state could not regulate a married couple's use of birth control. In 1972, the court extended this right to unmarried couples in Eisenstadt v. Baird. Eight justices agreed on the existence of such a right. They too disagreed about where in the Constitution that might be found.

Justice William Brennan wrote the majority opinion. He and three other justices believed that the "equal protection clause" of the 14th Amendment requires unmarried couples to have the same right to birth control as married couples. One justice found the right in the First Amendment. Two others looked instead at Massachusetts' justifications for its birth control ban for unmarried couples and found them irrational.

Only one justice dissented. Chief Justice Warren Burger believed that the state proved the health risks of the form of birth control at issue (vaginal foam), meaning that a ban served the public health.

Is the Right to Birth Control in Jeopardy?

So while the justices in Griswold and Eisenstadt disagreed on the reasons, they largely agreed on the result: Birth control is a right. Now, many today worry that if the federal right to abortion goes away, other "privacy rights" like birth control may follow. This seems extremely unlikely for a few critical reasons.

Justice Alito Likely Means What He Says

First, the draft opinion states that the ruling applies only to abortion. Justice Samuel Alito, its author, writes that abortion is inherently different from other rights because it involves the termination of human life. No other privacy rights involve the same actions.

No Public Outrage Over Birth Control

Second, the right to birth control is not controversial. The ban at issue in Griswold was enacted in 1879. Society had changed greatly since then, and laws prohibiting birth control were rarely, if ever, enforced. Since Griswold, there has been no movement in state legislatures to ban birth control.

Abortion is dramatically different. People have contested Roe since before the ink was dry. Most states regulate abortion; some still try to ban it completely. And while most Americans oppose overruling Roe, they nonetheless support regulations on the practice. Unlike abortion, no other privacy right is seriously, let alone vigorously, disputed.

So Where Do We Stand?

The bottom line is that even if the draft Dobbs opinion becomes the law of the land (which is by no means certain), the right to use birth control should be safe. After all, we have Alito's word on it. For what it's worth.

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