Why cancel Roe v. Wade would threaten access to birth control

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A leaked draft opinion published by Politico indicates that the Supreme Court may be ready to overturn Roe v. Wade, the landmark 1973 case that guaranteed the right to abortion. But experts say the effects of such a move are unlikely to be limited to access to abortion – and birth control could be next.

The draft, drafted by Judge Samuel Alito, has not yet entered into force and the court could change its mind before making its final decision. But experts say there are good reasons to worry about what the move could mean for access to all kinds of reproductive health care in the near future.

Right to privacy: Roe v. Wade and birth control

“It is a tragedy that we have such a dramatic reversal in the perspective of women’s rights in our country,” Dr. Georges C. Benjamin, executive director of the American Public Health Association, said today.

If the ruling goes into effect as written now, it could lead to a patchwork of laws that would make things more dangerous and confusing for people who need abortion care, he said.

Experts who analyze or work on policy have always known this was a possibility, “but obviously reading the draft decision was a very different experience,” said Jean Bae, visiting associate professor of policy and public health management at the NYU School of Global Public Health. TODAY.

“To be perfectly honest, I got physically sick reading it,” Bae said. For her, the draft opinion was “shocking” in large part because it calls into question the implied right to privacy on which many previous court rulings – not just Roe v. Wade – are based.

The right to privacy is not explicitly mentioned in the constitution, she explained, but it is something that has been codified in rulings time and time again over the past decades. The legal framework for these cases has been “based on the idea of ​​a zone of privacy that exists so that people are essentially free from government interference and control in making these kinds of very personal decisions,” Bae said.

The annulment of Roe v. Wade and the elimination of the right to access abortion opens the door to the dismantling of other rights that were previously protected by this implicit right to privacy. This can include the right to same-sex marriage and interracial marriage, as well as the right to decide certain aspects of your child’s upbringing, Bae said.

Access to birth control is currently protected by the same legal framework.

Despite assurances in the draft opinion that its implications will not go beyond abortion, “(the draft opinion) cannot be limited to abortion”, Wendy Mariner, professor of human rights health, bioethics and human rights at the Boston University School of Public Health, says TODAY says. In fact, the legal right to access contraception via the right to privacy predates Roe v. Wade.

In the landmark 1965 Griswold v. Connecticut, the Supreme Court upheld the right of married people to use contraception, Mariner explained. And in 1972, the court also extended this right to unmarried persons in Eisenstadt v. Baird.

“If you get rid of those two cases, there’s no Roe versus Wade,” Mariner said. “And if there is no basis in the constitution for the right to abortion, then there is no basis for the right to use contraception.”

It is not clear where rights around emergency contraception may land. These options (which include Plan B, Ella, and the copper IUD) can prevent pregnancy by preventing the ovary from releasing an egg, preventing the egg from fertilizing, or preventing a fertilized egg from implanting in the wall. vaginal. The Food and Drug Administration specifically notes that these drugs are birth control methods that prevent pregnancy, not abort it.

“The potential slide toward limiting access to birth control and a range of other reproductive services creates a real problem,” Benjamin said. “It really undermines the harmony and the ecosystem where women have the power to choose their reproductive options.”

In addition to its crucial role in preventing pregnancy, birth control is used to manage many health issues, he explained. (This can include everything from polycystic ovary syndrome to acne to migraines.) In this way, reducing access to contraceptive options can have far-reaching consequences for people’s health, including, but but not limited to, their reproductive choices.

It’s only a draft, but the experts are still worried

One of the most concerning aspects of the potential ruling is that, regardless of the scientific evidence, “states could be free to say that a fetus has the same rights as a person,” Mariner said. They could go so far as to subject people to “rigid and coercive regulations to ensure that a fetus is born, regardless of the consequences for the woman,” she explained.

And those who will be most affected by the decision will be those who are already the most vulnerable. “It’s going to have a dramatic impact on low-income people,” Benjamin said. Some states already have bans or serious restrictions on abortion access while others have so-called trigger laws, which are abortion bans that will go into effect in the event Roe v. Wade would be canceled.

“It’s very clear that your rights depend on where you live, including your constitutional rights, which is an outrage,” Mariner said. “And believe me, states that disapprove of abortion aren’t going to stop there.”

The right to privacy at stake in this ruling is “actually a fundamentally American idea,” Bae said. “It’s a pro-freedom idea that you should be able to do what you want with your life and your family, and governments shouldn’t be able to control that.”

And, ultimately, Justice Alito’s draft leaves it up to states to decide their stance on abortion access, Mariner said, meaning voting in local elections will be key to preserving codified rights. in Roe v. Wade and the other cases we have come to rely on.

CORRECTION (May 3, 2022, 9:00 p.m.): An earlier version of this version of the article incorrectly listed the year of the Supreme Court’s decision Eisenstadt v. Baird. The court ruled on this case in 1972, not 1962.

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