Roe v Wade: How will the end of abortion rights affect contraception and same-sex marriage

A draft decision was leaked yesterday showing a majority of US Supreme Court judges may overturn Roe v Wade and abortion rights. Now, legal experts believe other laws surrounding individual autonomy may be at risk, including the right to access contraception and same-sex marriage.

Right to access contraception

Laws prohibiting abortion may also restrict certain forms of birth control that opponents incorrectly claim function as abortion-causing medications. The Supreme Court decision underpinning the right to access contraception, Griswold v Connecticut, could also be targeted like Roe.

Priscilla Smith, lecturer on law and reproductive justice at Yale Law School, said:

If the draft becomes the real opinion, all of those issues – contraception, consensual sex and marriage rights – certainly are all at risk. They have definitely left the door wide open.

Justice Samuel Alito argues in the draft that the right to abortion is not explicit in the constitution, and contraception is not mentioned specifically either.

It’s 'definitely possible' that some states may criminally prosecute people who provide contraception that they claim are abortifacients, such as Plan B and certain intrauterine devices (IUDs). Smith said:

There are definitely states that would like to ban abortion from the moment of conception, which means before fertilization, before pregnancy.

Some states could extend these measures to prohibit other forms of contraceptives.

Right to same-sex marriage

There is also conjecture that the judges could also roll back the right to same-sex marriage. Some believe the draft opinion in the abortion case could lead to the court finding that same-sex marriage is not a fundamental right either.

Obergefell v. Hodges established the right to same-sex marriage in 2015. Jordan Woods, faculty director of the LGBTQ Law & Policy Program at the University of Arkansas, said Alito’s draft:

Absolutely provides a blueprint for the court essentially eroding or even overturning important constitutional precedents that are in this area of privacy that clearly this draft opinion is hostile towards.

However, Alito also wrote in the draft:

We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

Katie Eyer, a professor at Rutgers University with expertise in anti-discrimination law, believes that because public opinion in the United States is fervently in favour of same-sex marriage — 61%, as of 2019 — she doubts the court would want to revisit the issue.

Alito drew a distinction between Roe v. Wade and cases involving same-sex marriage, contraception, and sexual relations, claiming abortion is 'fundamentally different' as it destroys 'fetal life.'

Rolling back the right to same-sex marriage would result in a wave of custody cases, divorce proceedings, and property disputes — which the court is likely to see as disruptive.

Read more:

⋙ Abortion rights could be overturned, this is what it means for us

⋙ UK government will intervene to ensure abortion services in Northern Ireland

⋙ Texas abortion ban: US judge puts temporary halt on 'unlawful' law