Scum

59 Years Ago SCOTUS Guaranteed Access to Birth Control. Now, That and Much More Is Under Threat.

Under a second Trump presidency, those threats could very well become reality.

JULIANNE MCSHANE

Friday marked the 59-year anniversary of the Supreme Court’s decision in Griswold v. Connecticut, the case that confirmed the right of married people to use contraception.

That decision established the right to privacy, which gave rise to later court decisions on the right for unmarried people to use contraception without government interference; the right to abortion (which was, of course, overruled by the Dobbs decision); and other rights, including same-sex marriage.

But now, nearly six decades later, access to birth control, and many of the other rights that it helped establish, are under threat from the GOP—despite the fact that 90 percent of American women have used contraception. In the 2022 Dobbs decision, Justice Clarence Thomas made clear that to some in the GOP, a birth-control-less future is the goal: In his concurring opinion, he called for the court to “reconsider” Griswold, all but saying that they should revoke not just the right to contraception, but also the rights to marriage equality, and intimate sexual relationships, all of which he called “demonstrably erroneous.”

Under the second term of a Trump presidency, this reality could very well come to pass—and the GOP is already laying the groundwork.

Just two days prior to the Griswold anniversary this week, Senate Republicans blocked a bill that would have protected contraception access at the federal level. The purpose of the vote, according to Senate Majority Leader Chuck Schumer (R-N.Y.), was to “put reproductive freedoms front and center before this chamber, so that the American people can see for themselves who will stand up to defend their fundamental liberties.” President Biden called the Republicans’ opposition to the bill “unacceptable.” Republicans largely dismissed the effort as symbolic, with some saying that they saw the bill as unnecessary because contraception is already widely available.

But Democrats begged to differ following an interview Trump gave last month to a local television station, which some interpreted as saying he would consider imposing restrictions on contraception access. “Things really do have a lot to do with the states, and some states are going to have different policy than others,” Trump said, before saying for a second time that he would release “a very comprehensive policy” on it. Following the uproar over his comments, Trump quickly reversed course on Truth Social, writing that he would “never advocate imposing restrictions on birth control.”

Despite what Trump says, some Republicans have other plans. Project 2025, an initiative led by dozens of conservative groups and spearheaded by the Heritage Foundation, have said the Department of Justice under the next Republican president should apply the Comstock Act, a 19th-century anti-obscenity law, to ban the mailing of abortion pills. Leading abortion historian and law professor Mary Ziegler told me that, if enforced, Comstock could also potentially be used to ban contraception and gender-affirming care.

“Contraceptives, I think, would be on the table, because we know that a lot of abortion opponents believe that at least IUDs, the birth control pill, and the morning-after pill are abortifacients,” Ziegler told me back in April. Indeed, just this week, the CEO of the anti-abortion American Association of Pro-Life Obstetricians and Gynecologists said at a Senate hearing focused on the fallout of Dobbs that she believes IUDs and emergency contraception are abortifacients. (They are not.)

But even without Comstock, access to contraception is not equally available to everyone who needs or wants it, due to barriers including misinformation and lack of sex education, restrictive legal rulings and policies, the cost, and lack of health insurance. And research from the abortion rights policy and advocacy organization the Guttmacher Institute has also found that post-Dobbs, more people have faced barriers to accessing contraception. Last year, the FDA approved the first over-the-counter birth control, called Opill, and it hit shelves earlier this year, but the cost—$19.99 for a monthly supply, or $49.99 for a three-month supply—could be a barrier for some.

So, as the National Women’s Law Center wrote in a post on X on Friday, the day of the Griswold anniversary: “Today is a reminder of how important access to birth control is—but also that it’s in danger.”