With Roe v. Wade on the chopping block, Republicans have increasingly been speaking up about other Supreme Court cases they don’t like. After all, with conservatives possessing a 6-3 majority, why not make a wish list?
One of the cases that’s coming up is Griswold v. Connecticut, the 1965 decision that said married couples have a right to contraception access. It struck down a Connecticut law that outlawed the use of birth control devices.
Griswold was a landmark case, ruling against Connecticut on the basis of a married couple’s right to privacy. It set the stage for future decisions ensuring contraception access for unmarried couples, same-sex marriage rights and, of course, abortion access in Roe v. Wade.
Many Republicans abhor Griswold precisely because it is the foundation for so many other decisions.
Sen. Marsha Blackburn (R-Tenn.) recently said it was “constitutionally unsound.” Arizona GOP Senate candidate Blake Masters’ campaign website said he would only support judges “who understand that Roe and Griswold and Casey were wrongly decided, and that there is no constitutional right to abortion.”
In February, Pennsylvania GOP Senate candidate Jeff Bartos called Griswold a “terrible decision.” That same month, Matt DePerno, the Republican nominee for Michigan attorney general, said, “Listen, all these cases that deal — Griswold, Roe v. Wade, Dobbs — these are all state right issues. ... It’s going to be a state right issue on all of these things — as it should be!”
Masters has clarified that he does not favor banning contraceptives.
But if Republicans get what they want ― an overturning of Griswold ― it would kick the issue back to the states and open the door to restrictions or bans on birth control methods, because there would be no federal guarantee of access.
Griswold will not be overturned imminently. Even Amy Coney Barrett admitted as much during her confirmation hearings in 2020, saying, “I think that Griswold is very, very, very, very, very, very unlikely to go anywhere.”
But that doesn’t mean it’s impossible. After all, very few people believed Roe would be overturned too.
Sandra Fluke knows as well as anyone how precarious access to contraception is. In 2012, she gained national attention as a law student at Georgetown University for speaking out on the importance of having health insurance plans cover birth control costs. Republicans barred her from testifying before a House committee, and right-wing radio host Rush Limbaugh called her a “slut” and a “prostitute” for her stance on the issue.
“If the Supreme Court strikes down Roe v. Wade and the right to privacy, that has implications for gay marriage, interracial marriage, consensual adult sexual activity, and, yes, access to birth control,” said Fluke, who is now a public interest attorney. “We shouldn’t need to count on public popularity to prevent attacks on those constitutionally protected activities. Majority public support hasn’t protected abortion. Near universal public support didn’t protect birth control when the Supreme Court sided with opponents in cases like Hobby Lobby, and we’re already seeing judges and politicians taking very concerning positions regarding Griswold.”
There’s legislation in Louisiana right now that could test the Supreme Court’s commitment to Griswold. The bill would make abortion a homicide and charge women who undergo the procedure with murder. It could also criminalize certain forms of contraception ― such as IUDs and Plan B ― because it would change the state’s legal definition of a person to a fertilized egg.
Some Republicans have long pushed for federal personhood legislation, which would classify fertilized eggs as persons under the U.S. Constitution, making abortion illegal. And it’s an issue that’s coming up on the campaign trail.
In Senate races, Masters said he backs it. Pennsylvania GOP Senate candidate Dave McCormick said he believes life begins at conception. Sen. Ron Johnson (R-Wis.), who is up for reelection, said it’s “irrefutable” that life begins at conception in 2012. Sen. Marco Rubio (R-Fla.), who is also running this cycle, has backed personhood bills.
In congressional races, Christopher Rodriguez, a Republican running in California’s 49th District, said he plans to “author a bill that will define human life as beginning in the womb and therefore protected by the United States constitution.” Tim Reichert, running in Colorado’s 7th District, has ― in his work as an economist ― given presentations and written opinion articles arguing that contraception harms women economically and psychologically because it makes it harder for them to get married. His campaign has said he does not want to ban birth control.
And at the state level, there’s even more support. Candidates who have endorsed the idea of personhood legislation or the belief that life begins at conception include DePerno in Michigan, Georgia Gov. Brian Kemp (R), Arizona attorney general candidate Tiffany Shedd, Wisconsin GOP gubernatorial candidate Kevin Nicholson, Pennsylvania gubernatorial candidate Lou Barletta and others.
“The crux of this debate centers on when pregnancy begins,” said Osub Ahmed, associate director for women’s health and rights at the Center for American Progress. “Mainstream medical experts and even the federal government define pregnancy as beginning when a fertilized egg implants in a person’s uterus. However, conservative policymakers and advocates have attempted to shift the goal post, arguing that pregnancy begins at the moment of fertilization — well before implantation.”
“If this new definition were to be seriously considered or incorporated in any way into state legislation, it would put at risk access to a number of contraceptive methods that prevent implantation, including emergency contraceptives and intrauterine devices, which disturbingly would be redefined as abortifacients,” Ahmed added.
On Sunday, Mississippi Gov. Tate Reeves (R) didn’t give a flat-out “no” when asked whether his state would perhaps target birth control such as Plan B or IUDs.
“My view is that the next phase of the pro-life movement is focusing on helping those moms that maybe have an unexpected and unwanted pregnancy,” Reeves said. “And while I’m sure there will be conversations around America regarding [contraceptives], it’s not something that we have spent a lot of time focused on.”