It’s Not Just About Abortion: Without Kennedy, Birth Control Could Be Next

For years, conservatives have grumbled about women’s right to contraception. Now they can do something about it

After Justice Anthony Kennedy's retirement announcement Wednesday, one thing seems absolutely certain: Whoever Donald Trump nominates will be exactly what conservatives have long desired, a fifth vote to overturn Roe v. Wade, the 1973 decision that ensures a woman's legal right to abortion.

As the rest of Western democracy becomes more enlightened on this issue — even in Ireland, where voters recently overturned a long-standing ban on abortion — the United States threatens to slide closer to a patriarchal dystopia. A large majority of Americans supports legal abortion, but thanks to gerrymandering and court-packing, the U.S. is now a country politically dominated by a rabid, right-wing minority, one increasingly empowered to simply ignore public opinion.

Because of this, there's good reason to believe it's not just Roe or the legal right to abortion that is on the chopping block. Americans should also be deeply concerned that, with his next Supreme Court pick, Trump will open up a new avenue for assaults on the legal right of women to prevent pregnancy in the first place. It may sound like a crazy fantasy scenario straight out of "The Handmaid's Tale," but this legal right that Americans have taken for granted for decades is now on surprisingly shaky ground.

“An extremely conservative justice who would be interested in overturning Roe v. Wade would also be a threat to the right to contraception," Genevieve Scott, a senior staff attorney at the Center for Reproductive Rights, told Salon. “The future of both access to abortion and access to birth control, as well as women’s reproductive rights when they are pregnant, is really on the line here.”

Jessica Mason Pieklo, a law professor who works as a legal journalist for Rewire, mentioned briefly on a Wednesday edition of her podcast "Boom! Lawyered" that she was worried about the fate of the 1965 Griswold v. Connecticut decision and the 1972 Eisenstadt v. Baird decision, which together created the right of privacy and overturned state laws restricting contraception access.

"The contraception decisions are the cornerstones of reproductive and sexual privacy," Pieklo told Salon. "If you really want to undo those protections, it’s not enough to undo Roe, for example. You need to go back and really get to that heart of the right of privacy."

"The privacy right that is recognized in Roe v. Wade," Scott explained, "is actually derived, in part, from the prior decision in Griswold v. Connecticut."

"It’s something that conservatives have been complaining about forever," Pieklo added. "They don’t just say that abortion is wrongly decided. They talk about this court creating a right of privacy where one does not exist.”

As Pieklo said, there's a large body of argument from conservative writers in places like the National Review arguing that Griswold was wrongly decided and that the right to privacy is a fiction. The Federalist Society, which was instrumental in creating Trump's short list of potential judicial picks, has heavily promoted this idea that Griswold decision and the right to privacy are simply wrong.

But it's not just conservative writers who have forwarded this idea — it's judges who currently sit on the Supreme Court.

Chief Justice John Roberts, after he was nominated by George W. Bush in 2005, drew attention because of a draft article he wrote as senior adviser to the attorney general under Ronald Reagan, in which he approvingly cited Justice Hugo Black's dissent in Griswold. As much as one might like the idea of a right to privacy, Roberts wrote, that did not "mean that courts should discern such an abstraction in the Constitution."

In another memo from 1981, Roberts wrote of Griswold that it "devotes a section to the so-called ‘right to privacy,’" and then argued arguing "that such an amorphous right is not to be found in the Constitution."

Justice Clarence Thomas, prior to his nomination by George H.W. Bush in 1991, expressed a similar view that Griswold was poorly decided, and called the right to privacy an "invention." He stuck by this view when it came to Lawrence v. Texas, when he voted against the court majority that held that the right to privacy invalidated laws banning homosexual sex.

Justice Samuel Alito has not publicly inveighed against Griswold, but he did argue, as a federal appeals court judge, that requiring women to notify their husbands in order to get abortions was valid law, and that women had no privacy-right protections against such legislation. He has also been the most actively anti-contraception judge on the Supreme Court, writing a major opinion undermining birth control access and immediately using the arguments in the next contraception case to float the idea of insurance structures that would only serve to end contraception coverage entirely.

All four conservative judges on the court affirmed Griswold as legal precedent during their confirmation hearings, but then again, they also said similar things about Roe. The most that Justice Neil Gorsuch could muster about Griswoldwas that it was "more than 50 years old." He refused to say anything more, even as he was happy to praise other important decisions, such as the one legalizing interracial marriage.

This question of precedent is even more concerning after this week when, in Janus v. AFSCME, the conservative justices overturned a 40-year-old Supreme Court decision, Abood v. Detroit, dealing with union fees. As Justice Elena Kagan wrote in her dissent, the court majority believed "Abood was wrong," which in normal circumstances is "not enough" reason to overturn long-standing precedent. While that case was about free speech rights and unions, it also signaled that, for the conservative justices, the principle of stare decisis, requiring judges to respect precedent, no longer holds.

In a multitude of minor but important ways, the Trump administration has been trying to undermine contraception access all along. As Salon has been chronicling, federal officials have ramped up efforts to make it harder for women to get birth control. They've attacked publicly funded sources by proposing moving grants away from contraception and sex education programs to programs recommending that women abstain from sex completely unless they wish to conceive. They've also undermined private sources of contraception by attacking federal policy guaranteeing that women's health insurance plans cover birth control.

During a United Nations meeting in April, Trump officials even argued that women don't need birth control, and should learn "refusal skills" instead.

This week, Politico reported that Valerie Huber, a longtime advocate of abstinence-until-marriage programs, has been appointed to lead a strategic planning committee at the Department of Health and Human Services. Huber wrote in 2009 that sex education "was linked to a personal justification of unconventional sexual behaviors." She has also argued that Christians such as herself "should promote Biblical standards in society," applied to believers and nonbelievers alike, and that when it comes to sexual morality that means "God’s standard for premarital abstinence."

As Scott explained, the Center for Reproductive Rights is currently suing the Trump administration for what she called "a backroom deal" to allow the University of Notre Dame to deny female students birth control coverage in health insurance plans the students pay for. The Trump administration is trying to change federal policy to allow any institution to do this, but since it hasn't successfully changed the rule yet, the Center argues this deal is illegal. 

“I’m very concerned this is only the first step in ... an all-out attack on women’s reproductive rights by this administration," Scott said. 

"I know I sound paranoid sometimes," Pieklo said. "I joke about my Carrie Mathison-like stringboard, but there are a lot of pieces out there."

It's unlikely that the Trump administration or any conservative states will move toward an outright ban on contraception, especially in the short term. Any such attempt would be politically disastrous. But there is reason to believe that with Kennedy gone and a new Supreme Court justice selected by the Federalist Society, nominated by Trump and confirmed by Senate Republicans, the Christian right will feel emboldened to escalate its attacks on contraception access. When that happens, right-wing radicals will likely have the support of conservative judges who never believed women had the right to privacy about their sex lives in the first place.

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Amanda Marcotte is a politics writer for Salon. She's on Twitter @AmandaMarcotte.