The Supreme Court's decision to overturn Roe v. Wade could pave the way for states to restrict access to certain contraceptives, two legal experts said.
Ahead of Friday, 13 states had trigger laws designed to go into effect and outlaw abortion after a Roe reversal. Such bans are now in place in Arkansas, Kentucky, Louisiana, Missouri, Oklahoma and South Dakota, and are expected soon in Mississippi, North Dakota, Utah and Wyoming. Bans in Idaho and Tennessee could follow in 30 days, and Texas shortly after that.
"The states that are trying to limit abortion from the moment of conception — not even from the moment of pregnancy, as the medical profession would define it — could well try to challenge Plan B, emergency contraception, potentially even IUDs," said Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University.
Those forms of birth control could be an easier target for restrictions than traditional birth control pills, she said, because they prevent implantation — when a fertilized egg attaches to the womb — in addition to fertilization. Some people already consider them abortion-inducing medications for that reason.
The Supreme Court decision does not directly affect access to contraception. Rather, experts anticipate that states, counties or even individual prosecutors who want to ban Plan B or IUDs may now believe they have the "tailwind of the Supreme Court" behind them, Parmet said.
The concurring opinion from Justice Clarence Thomas on Friday even suggested that the Supreme Court should "reconsider" other past rulings, including Griswold v. Connecticut, a 1965 case that granted married couples the right to buy and use contraceptives. The majority opinion, however, said the decision should not call into question other precedents.
Is birth control under threat?
In his opinion, Thomas expressed skepticism around the doctrine of substantive due process, which refers to the court's power to protect certain rights, even if the rights are not explicitly named in the Constitution. Contraception falls into that category.
"I can assure you that in the 18th century when they drafted the Constitution, women were not part of the body politic. They weren’t voting. They weren’t at the table suggesting edits," said Khiara M. Bridges, a law professor at the University of California, Berkeley.
So the court has plenty of leeway to interpret how the Constitution might have dealt with contraception access, she explained.
"It’s all of the implications of the Dobbs decision that make us reasonable to be fearful about the accessibility of contraception in the future," Bridges said.
The more immediate question, however, is whether a case could be made that current bans on abortion also cover methods of contraception that prevent pregnancy after fertilization.
"I wouldn’t be surprised if some local prosecutor, either a zealous believer or headline seeker, tries to make a name for themselves by trying to go after some physician or Planned Parenthood clinic for violating the state abortion law by giving out emergency contraception," Parmet said.
From there, she added, we might "see copycat prosecutions" if that legal effort succeeds.
It's also possible, Bridges said, that some states could try to classify Plan B or IUDs as abortifacients as states interpret decades-old anti-abortion laws that could now go back into effect.
"A legislature might proactively make clear that when they say abortion, they mean all devices that prevent implantation," Bridges said.
A signal to states from the Supreme Court
Parmet said she did not expect Griswold v. Connecticut to be challenged right away, nor did she expect widespread bans on birth control.
"I don’t think a legislature is going to be quick to embrace getting rid of all contraceptives," she said.
But Bridges said the court's recent decisions have sent a message to conservative state lawmakers.
"If the GOP decides that it wants to come for contraception next, the Supreme Court has essentially given every sign in the world that it will not stand in the GOP’s way," she said.
As Parmet sees it, the court has indicated that it's "willing to overturn precedent with abandon." And in doing so, she added, the judges have raised questions about the future of other long-established rights.
"The Supreme Court today just unleashed — what’s the cliche of the moment? Pandora’s box? A can of worms?" Parmet said. "If they thought they were solving controversy, if they thought they were clarifying things, they’ve just made a whole lot of things much more uncertain."
