A leaked draft opinion published by Politico indicates that the Supreme Court may be ready to overturn Roe v. Wade, the landmark 1973 case that secured the right to abortion. But experts say the effects of such a decision likely won't be limited to abortion access — and birth control may be next.
The draft, written by Justice Samuel Alito, hasn't gone into effect yet and the court could change its mind before issuing its final decision. But experts say there is good reason to be concerned about what the decision may mean for access to all kinds of reproductive health care in the near future.
Right to privacy: Roe v. Wade and birth control
“It’s a tragedy that we have such a dramatic reversal on the perspective of women’s rights in our country,” Dr. Georges C. Benjamin, executive director of the American Public Health Association, told TODAY.
If the decision goes into effect as written now, it could lead to a patchwork of laws that make things more dangerous and more confusing for people who need abortion care, he said.
Experts who analyze or work on policy always knew this was a possibility, "but obviously reading the actual draft decision was a very different experience," Jean Bae, visiting associate professor of public health policy and management at NYU School of Global Public Health, told TODAY.
"Being perfectly honest, I kind of got physically sick reading it," Bae said. For her, the draft opinion was "shocking" in large part because it questions the implied right to privacy that many previous court decisions — not just Roe v. Wade — are based on.
The right to privacy is not explicitly mentioned in the constitution, she explained, but it's something that's been codified in decisions over and over again for the last several decades. The legal framework for these cases has been "based on the idea of a zone of privacy that exists for people to essentially be free from government intervention and control in making these kinds of very personal decisions," Bae said.
Undoing Roe v. Wade and eliminating the right to abortion access opens up the door to dismantling other rights that have previously been protected under that implied right to privacy. That can include the right to same-sex marriage and interracial marriage, as well as the right to decide certain aspects of your child's education, Bae said.
Access to birth control is currently protected under the same legal framework.
Despite assurances in the draft opinion that its implications won’t go beyond abortion, "(the draft opinion) can't be limited to abortion," Wendy Mariner, professor of health law, bioethics and human rights at Boston University School of Public Health, told TODAY said. In fact, the legal right to access contraception via the right to privacy predates Roe v. Wade.
In the 1965 landmark case Griswold v. Connecticut, the Supreme Court upheld the right of married people to use contraception, Mariner explained. And in 1972, the court extended that right to non-married people, as well, in the decision on Eisenstadt v. Baird.
"If you get rid of those two cases, there's no Roe v. Wade," Mariner said. "And if there is no basis in the constitution for the right to abortion, then there's no basis for the right to use contraception."
It's not clear where rights around emergency contraception may land. These options (which include Plan B, Ella and the copper IUD), can prevent pregnancy by stopping the ovary from releasing an egg, preventing fertilization of the egg or by keeping a fertilized egg from implanting on the uterine wall. The Food and Drug Administration specifically notes that these medications are contraceptive methods that prevent pregnancy, not abort it.
"The potential creep to limiting access to birth control and a range of other reproductive services creates a real problem," Benjamin said. "It really undermines the harmony and ecosystem where women have the power to choose their reproductive options."
In addition to its crucial role in preventing pregnancy, birth control is used to manage many health conditions, he explained. (That can include everything from polycystic ovary syndrome to acne to migraines.) In this way, reducing access to contraceptive options can have far-reaching consequences for people's health — including but not limited to their reproductive choices.
It's just a draft, but experts are still concerned
One of the most concerning aspects of the potential decision is that, regardless of scientific evidence, "states could be free to say a fetus has the same rights as a person," Mariner said. They could go as far as subjecting people to "rigid and coercive regulation to make sure that a fetus is born, no matter the consequences to the woman," she explained.
And those most affected by the decision will be those who are already most vulnerable. "This is going to have a dramatic impact on low-income individuals," Benjamin said. Some states already have bans or serious restrictions on abortion access while others have so-called trigger laws, which are abortion bans set to go into effect in the event that Roe v. Wade is overturned.
“It’s very clear that your rights depend on where you live, including your constitutional rights, which is an outrage," Mariner said. "And trust me, the states that disapprove of abortion are not going to stop there."
The right to privacy at stake in this decision is "actually a fundamentally American idea," Bae said. "It's a pro-individual liberty idea that you should be able to do what you want with your life and your family, and that governments should not be able to control that."
And, ultimately, Justice Alito's draft leaves it up to the states to decide where they stand on abortion access, Mariner said, meaning voting in local elections will be vital to preserving the rights codified in Roe v. Wade and the other cases we've come to rely on.
CORRECTION (May 11, 2022, 1:25 p.m.): An earlier version of this article version misrepresented the process of implantation. Emergency contraception can prevent a fertilized egg from attaching to the uterine wall, not the vaginal wall.
CORRECTION (May 3, 2022, 9:00 p.m.): An earlier version of this article version misstated the year of the Eisenstadt v. Baird Supreme Court decision. The court decided that case in 1972, not 1962.