Why progressives are alarmed about potential fallout from Justice Alito's leaked opinion
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The leaked draft of a potential Supreme Court ruling to overturn Roe v. Wade has sparked a discussion about what other previously granted rights might be revoked by the court in the future. Some progressives believe that contraception might be the next target of pro-life conservatives. Here's everything you need to know:
Is there a Constitutional right to contraception?
The Founders didn't specifically include a right to any family planning methods in the Bill of Rights, so you won't find any protection for, um, protection in the text of the Constitution. But the Supreme Court ruled in Griswold v. Connecticut, a 1965 case, that married couples do have the right to obtain birth control — part of a "right to privacy" that can be inferred from the Third Amendment's prohibition against forcing Americans to quarter soldiers in their homes, the Fourth Amendment guarantee of the right to be free of unreasonable searches and seizures, the Fifth Amendment's protection against self-incrimination, and the Ninth Amendment's assertion that Americans possess rights that aren't explicitly spelled out by the Constitution.
That includes the right to contraception. "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" Justice William O. Douglas wrote for the 7-2 court majority. "The very idea is repulsive to the notions of privacy surrounding the marriage relationship."
Why would a right to privacy be controversial?
Douglas' opinion relied on the notion that the right to privacy could be found in "penumbras" emanating from the Constitution's enumerated rights. That was a little bit fuzzy for conservatives like the late Justice Antonin Scalia, who once referred to the notion of "a generalized right of privacy" resulting from such deductive work as "garbage." "The justices in Griswold produced a non-text-based and generalized right," Robert George and David Tubbs wrote for National Review in 2005 — and the result of the decision was the striking down of "public-morals laws deemed by the justices to reflect benighted moral views."
Indeed, Griswold also ended up serving as the foundation for a series of other rulings that have irritated and offended conservatives over the years. After that case, the court would later guarantee the right to contraception for unmarried couples and older juveniles, strike down laws criminalizing gay sex and same-sex marriage, and — of course — declare a right to abortion in Roe v. Wade. For the right, that makes Griswold the original sin of the abortion debate. "The Constitution quite obviously does not protect abortion as a fundamental right," writes the Washington Examiner's Timothy Carney. "Roe relied on a 'right of privacy" 'emanating' from a 'penumbra' cast by actually enumerated rights. It was clearly motivated reasoning." A majority of the Supreme Court apparently now agrees, if Justice Samuel Alito's leaked draft opinion is any indication.
What about the leaked draft ruling on abortion puts contraception in danger?
Possibly nothing. Alito's draft opinion goes out of its way to suggest Americans need not fear the Supreme Court going on a spree of revoking previously conferred rights. Other precedents — including, presumably, Griswold — don't involve "the critical moral question posed by abortion," Alito writes. "They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way." The Wall Street Journal's conservative editorial board agrees, pointing out that 92 percent of Americans (including 90 percent of conservatives) think birth control is morally acceptable. "That stands in contrast to abortion, which remains a contested moral and political issue."
But Democrats and other folks on the left are leery. Alito's draft ruling also shifts the legal "Overton window," Leah Litman and Steve Vladeck say at Slate: "Public opinion and politics will dictate what the court's conservative supermajority thinks it can get away with." And as a precedent, "the Alito draft creates a legal pathway" to strike down Griswold, writes Amy Davidson Sorkin in the New Yorker. She points out that "some opponents of reproductive rights put intrauterine devices in the category of 'abortifacients,' alongside the morning-after pill," and concludes: "We may be entering an increasingly un-private era."
Are any conservatives actually interested in ending contraception?
Elected Republicans sound cautious on the issue. The answer may depend on whether the definition of contraception includes "Plan B" pills that women can use in lieu of a surgical abortion. Mississippi Gov. Tate Reeves (R) said Sunday that "the next phase of the pro-life movement" is helping women with unplanned pregnancies, and added: "While I'm sure there will be conversations around America regarding [birth control], it's not something that we have spent a lot of time focused on." Idaho lawmakers are already talking about restrictions on so-called "morning after" pills, and the campaign website for Blake Masters, a conservative running in Arizona for the Senate, says that Griswold was "wrongly decided." (On Monday, though, Masters tweeted that while's pro-life and thinks Griswold court "made up a Constitutional right," he doesn't think contraception should be outlawed.)
The Arizona Mirror points out, though, that the National Republican Senatorial Committee urges GOP candidates to steer clear of the issue. "Republicans DO NOT want to take away contraception," the group says in its talking points advice to Republicans running for office. It also advises those candidates to tell the media: "I'm not in favor of putting women or doctors in jail. I would never take away anyone's contraception or health care." That suggests — for now, at least — that the GOP sees a fight over birth control as a losing political issue.
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