After the Roe v. Wade vote, access to contraception could be under scrutiny

Last night Politico got a first draft majority opinion written by Justice Samuel Alito which revealed the Supreme Court would likely strike down Roe v Wade. If Alito’s view prevails, abortion will be immediately illegal in the 18 states that currently have full or near-total abortion bans already in effect. The wording of Alito’s opinion has some experts concerned that access to contraception may also be restricted in the future.

Previous debates on abortion rights have generally concerned the rights of the unborn fetus. Roe v. Wade granted American women the right to an abortion during the first two trimesters of pregnancy, with certain restrictions allowed during the second trimester. In Planned Parenthood v. Casey in 1992, the Court overturned this quarterly framework in favor of a viability analysis. In other words, restrictions on abortions could be applied if the fetus could survive outside the womb.

What is different in current opinion is that the debate no longer revolves around the rights of the fetus. Instead, Alito’s justification for overthrowing Roe stems from the fact that abortion is not mentioned in the Constitution. “The Constitution makes no reference to abortion, and no such right is implicitly protected by constitutional provision,” Alito writes. His argument is why some suggest the right to contraception could be next.

During the Rachel Maddow Show, constitutional scholar and congressman Jamie Raskin explained that Roe’s original decision was based on a 1965 Supreme Court case, Griswold v. Connecticut, which struck down a law banning birth control. In this case, the Supreme Court declared that individuals have a right to privacy over intimate decision-making.

“We know there’s a right-wing war on contraception now, but if Casey is going to fall, if Roe v. Wade is going to fall, then Griswold v. Connecticut, presumably, will also fall, because the word ‘contraception” or ‘birth control’ does not appear in the Constitution. Indeed, the phrase ‘right to privacy’ does not appear in the constitution. So this seems to be an invitation to have regulation and legislation against it. -Handmaid’s Tale-type feminists all over the country,” Raskin told Maddow.

Raskin isn’t the only one who believes access to birth control is in jeopardy, others are weighing in as well. Congresswoman Barbara Lee, in a tweet originally written on April 25 but retweeted after the Politico report, wrote “PSA: If Roe falls, your constitutional right to birth control will also be in jeopardy. It was never just about abortion. It is about controlling and criminalizing our bodies.

And on April 4, Colorado Gov. Jared Polis signed a bill Monday codifying abortion and birth control rights in the state. It seems unlikely that contraception would be included if the state were not prepared for the possibility that the United States Supreme Court could also strike down access to birth control.

Enabling women to access family planning is not just a family issue, it has implications for women’s careers and earnings. Harvard economists Claudia Goldin and Lawrence Katz assessed the impact of birth control on women’s careers. They write: “In 1960, 18.4% of professionals were women, as were 4.7% of ‘top professionals’. In 1998, 36.4% of professionals and 25.1% of the high-level subset were women. The researchers attribute much of this increase to women’s access to birth control pills. They argue that access to reliable contraception has enabled women to invest in their education and careers. They write: “The female to male ratio in professional programs began its rapid ascent in 1970, just as the first pill cohorts graduated from college. These economists say there is another factor that likely influenced these advances for women: access to abortion.

Another study found a direct link between access to contraception and a woman’s salary. Women who had access to legal contraception from age 18 to 21 earned 5% more per hour and 11% more per year by age 40. Again, the study authors suggest that having access to birth control such as the pill allows women to delay having children, which means they can invest more in their education and in choosing a profession.

We don’t know what the Court’s final opinion will look like, but if it looks like the leaked draft, it represents a major setback for women’s rights as well as the advancement of women in the workplace.

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