What will the Supreme Court do after it overturns Roe v. Wade in the next few weeks? Jacky Eubanks, a Trump-endorsed candidate for Michigan’s state Senate, suggested one potential answer in an interview last week: ban birth control.
“People believe that birth control—it’s better, like you said, oh, because then you won’t get pregnant and you won’t need to have an abortion,” she told Church Militant, an arch-conservative Catholic media outlet. “But I think it gives people the false sense of security that they can have consequence-free sex, and that’s not true, and that’s not correct. Sex ought to be between one man and one woman in the confines of marriage.” At least two or three Supreme Court rulings prevent her—at least for now—from enacting this vision of American sexual life into law.
There is an ongoing debate in legal circles (and sometimes beyond them) over whether the court will overturn decisions on contraception, marriage equality, and other cornerstones of Americans’ sexual freedom after its upcoming ruling in the Mississippi abortion case Dobbs v. Jackson Women’s Health Organization. Most conservative commentators (and a few nonconservatives) claim that there is no sign from Justice Samuel Alito’s draft opinion that the court will target those precedents. Many on the other side are not persuaded by Alito’s professions of self-restraint.
Here is my basic read of the situation: There is a subset of conservatives who would be fine if the court overturns Roe and goes no further than that on other rights. Those conservatives see Roe as a unique evil in the American constitutional firmament, both because they think it was responsible for the deaths of millions of human lives over the past half-century and because it is anathema to their preferred method of reading the Constitution. To them, same-sex marriage, if they still oppose it, does not present the existential life-or-death questions that abortion does and therefore doesn’t need to be overturned.
You could read Alito’s draft opinion as taking this approach. After he lists all the various constitutional rights that the court pronounced before and after Roe and Casey, he says that Roe is different. “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” Alito wrote. That critical moral question, he explained, was the destruction of “potential life” or an “unborn human being” as described by the state of Mississippi. “They are therefore inapposite,” Alito continued. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
But there is also a subset of conservatives who are, for lack of a better term, more ambitious. They want to reverse not only Roe and Casey but all the parallel rulings that shield Americans’ sexual lives from state interference. They see no reason why Alito’s logic—that Roe isn’t “deeply rooted” in Anglo-American legal history and therefore must fall—couldn’t also be used to dismantle the legal scaffolding of the sexual revolution. And with five reliable conservative votes on the high court, they see no real downside to trying. To them, the worst that this Supreme Court could say is no.
Let’s start with the basics. “Will the court overturn X?” is really two separate questions: Will someone try to overturn X, and will the court actually agree with them that X should be overturned? There are precedents that the court would happily overturn if it got the chance to do so, but is unlikely to get that chance. Unlike Congress, which can take up an issue whenever it likes, the Supreme Court has to wait for someone to bring a relevant case to it. Korematsu v. United States, which infamously upheld Japanese-American internment during World War II, wasn’t overturned for decades because the federal government didn’t try to intern an entire ethnic group again. The justices finally abrogated it in 2018 only after it came up during the litigation over Donald Trump’s Muslim ban.
Loving v. Virginia, which struck down bans on interracial marriages in 1967, should be safe because it falls under the Equal Protection Clause instead of a general right to privacy. But it is also safe for two more practical reasons. First, it is almost impossible to imagine that any state legislature today would try to pass a new law banning interracial marriages or enforce one that might technically remain on the books. Second, and perhaps more importantly, there is not a single sitting Supreme Court justice—let alone five of them—who would vote to uphold such a law. So not only would no one actually be able to challenge Loving, but it would never succeed anyway.
Beyond that case, however, the prospect for other rights gets a little murkier. What about Griswold v. Connecticut, where the court ruled that denying access to contraceptives to married couples violated the right to privacy? (Eisenstadt v. Baird expanded it to unmarried couples a few years later.) The court relied upon Griswold’s reasoning when it handed down Roe. National Review’s Ramesh Ponnuru wrote earlier this month that he thinks a move to overturn Griswold would be unlikely and said those who thought otherwise were falling prey to the slippery-slope fallacy. “The campaign against Roe had some advantages going for it that the campaign against Griswold, for example, doesn’t,” he wrote. “Such as existing: There is no campaign against Griswold.”
I don’t think that’s quite right. For one, to the extent that there isn’t a separate, well-structured, independent campaign against Griswold right now, that’s because it would by definition have to be a campaign against Roe as well. Any desire to overturn the former would have been subsumed by the higher-order fight against the latter for the last 50 years. There may be conservative legal thinkers out there who want Roe overturned but not Griswold, either for practical or for constitutional reasons. But if there is a single one who thinks Griswold should go but Roe should stay, I have never heard of them, and I would be fascinated to meet them.
What’s more, there are also plenty of anti-abortion activists who oppose access to contraception, albeit often to varying degrees and in varying circumstances. They can often be read in the pages of National Review. In 2008, conservative writer Michael New argued that the anti-abortion community should oppose expanded access to contraceptives, even if that access would reduce the number of abortions, because it would damage the movement’s broader aspirations and moral stances.
“If sexually active individuals used birth control more often, there would likely be fewer unwanted pregnancies,” he wrote. “However, easier access to contraceptives might encourage even more sexual activity among unmarried people. This is especially the case if contraceptives are made available to populations which include a high percentage of sexually inactive people, such as young teens. It would send powerful messages about the sort of sexual behavior that is both expected and acceptable.”
Alexandra DeSanctis, writing for National Review in 2016, argued that many well-known types of contraception actually induce abortions. She distinguished between methods that prevent ovulation or fertilization—presumably condoms, the daily birth-control pill, and the like—and those that prevented an embryo’s implantation and development. IUDs, she noted, either prevent an embryo from implanting itself in the uterine wall or are generally toxic to it. And she argued that emergency contraceptives like Plan B often function like abortion-inducing drugs by destroying embryos, unless taken at specific times in the monthly cycle.
Both of these writers were addressing specific claims and arguments during the Obama-era debates over access to contraceptives and religious liberty claims. But they drew upon philosophical positions that go beyond those specific debates. “Embryos are surely humans as much as you and I, who began as embryos just like everyone else,” DeSanctis concluded. “Their lives are surely ended by these methods of birth control; if murder is ever wrong, abortifacient drugs must be wrong, too.” Taken to its logical conclusion, this could point toward weakening Griswold if not outright overturning it.
National Review, of course, does not pass laws. But a growing number of Republican lawmakers have either aired criticism of the 1965 ruling or supported legislative measures that could violate it. Some of the state abortion bans under consideration or already enacted could ban some forms of contraceptives like Plan B. And GOP legislators in states like Oklahoma and Texas are already taking steps to restrict abortion pills that could be obtained by mail to circumvent state-level bans. It’s possible that anti-abortion lawmakers and activists will take the jump from mifepristone to Plan B if they philosophically believe that both drugs cause abortions.
The Wall Street Journal is also trying to tamp down concerns about Griswold. Its editorial board recently claimed that the court’s conservative justices have always declined to discuss Roe in their confirmation hearings but often expressed support or acceptance of Griswold. This is also not quite right. “My bottom line was that I felt that there was a right to privacy in the Constitution, and that the marital right to privacy, of course, is at the core of that,” the Journal quoted Thomas telling senators in his 1991 hearing. By 2003, when he dissented from the court’s ruling in Lawrence, Thomas stated outright that there was “no general right to privacy” by quoting from another justice’s dissent in—you guessed it—Griswold. I guess he changed his mind.
What about gay rights decisions like Lawrence v. Texas and Obergefell v. Hodges? The latter decision still comes under fire from right-wing lawmakers like Tennessee Senator Marsha Blackburn and Texas Senator John Cornyn. It’s also possible that a state like Texas could mount some sort of defiant stand against Obergefell after Dobbs is handed down, sensing weakness and a moment to strike. Lawrence is not invulnerable either. After the 2003 ruling, some states like Montana repealed their laws that had criminalized same-sex relationships. But more than a dozen states still technically have those laws on the books.
When it comes to LGBT rights, the conservatives who believe the court won’t go further rely on political and legal realism. The Atlantic’s David French, a conservative writer and lawyer, noted earlier this month that while parts of Alito’s opinion can be read as hostile to Obergefell, other parts would counsel strongly against overturning it. When the Supreme Court considers whether to overturn one of its past decisions, one of the factors it typically looks at is what it calls reliance interests. If people built their lives around one of the Supreme Court’s rulings, in other words, how deeply would they be affected if it were overturned? Destabilizing the law too often, French noted, can undermine confidence in the rule of law in general.
When it comes to abortion, Alito wrote that there were no “concrete reliance interests” for abortion because, paraphrasing Casey, getting one is generally an “unplanned activity” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” The same can’t be said for the more than 600,000 same-sex couples who are currently wedded in the United States, a not inconsiderable number of whom were able to do so because of Obergefell. “By contrast, there is no way to take ‘virtually immediate account’ of a sudden, state-ordered involuntary dissolution of a marriage,” French observed. “Such a ruling would instantly introduce personal and legal chaos into families across the nation.”
I would like to think that the justices wouldn’t be depraved enough to hurl a wrecking ball at hundreds of thousands of lives. Alito’s writing in Dobbs must also be reconciled with his writings in other cases. When the court handed down Obergefell in 2015, Alito wrote a dissenting opinion where he complained that the majority did not care that “the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition.” He denounced it again in a 2020 dissent by arguing that the right “is found nowhere in the text” of the Constitution and said the ruling had unfairly harmed Americans with anti-gay religious beliefs. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” he concluded.
It’s notable that Alito framed Obergefell as an unfair deprivation of the American people’s democratic ability to decide major issues, just as he did to justify overturning Roe in his draft opinion in Dobbs. His claim that Obergefell burdened religious freedom is also a worrying one in a court that is hypersensitive to those claims. His odes to American self-government also fall a little flat after he used GOP voter-fraud myths to narrow the Voting Rights Act of 1965 in a major voting rights case last year. In short, Alito only sounds like a Supreme Court justice who will vote to uphold Obergefell if you set aside all but one thing he’s ever written on the subject.
Marriage equality currently enjoys broad support in American society, with even a majority of Republicans now holding favorable views of it. But there are also alarming signs of regression on LGBT rights. Florida’s “Don’t Say Gay” bill, championed by Governor Ron DeSantis, initially sought to eliminate discussion of sexual identity in the state’s public schools before it was narrowed after public backlash. Multiple Florida teachers have already lost their jobs over their sexual orientation, even though the bill hasn’t gone into effect yet. In Texas and other GOP-led states, school boards and librarians are removing materials aimed at helping LGBT students, as part of a broader right-wing effort to ideologically tilt public education in their favor.
My friends and family members know I often write about the Supreme Court, and some of them have asked me what the Supreme Court will do next. Three or four years ago, I would have said, No, these justices aren’t going to come for your birth control or your marriage license or your intimate relationship. I can’t really do that anymore. Maybe they won’t! Maybe Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett will drift toward the line-drawing faction of American legal conservatism. Satisfied with toppling Roe after a 49-year crusade against it, they might turn to other movement priorities like expanding the Second Amendment or strangling federal regulatory power.
Or they might not. The court has shifted so far to the right and so quickly that it’s harder to predict what their outer bounds might be. They are certainly not afraid of big, unpopular changes. Dobbs will be a testament to that, and so was the decade-long effort to level the Voting Rights Act of 1965, which was once seen as untouchable and sacrosanct in American political life. It’s always possible that, after Roe, the court will then decide to let Americans live their private lives as they see fit. It’s also possible that it’ll find the temptation to join the sexual counterrevolution impossible to resist. If the GOP’s actions over the last few months are any indication, conservatives plan to do a lot of tempting in the years ahead.
