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Alito Doesn’t Want Your Contraceptives

Birth-Control pills packet
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By: The Editorial Board – wsj.com – May 15, 2022

The political campaign to save Roe v. Wade includes urgent warnings about all the other historic precedents that are now purportedly under threat. Listen instead to Yale Law Professor Akhil Reed Amar, who supports abortion rights but is honest enough to rain on this implausible parade of horribles.

“Lib law professors, you’re just trying to scare people with boogeymen or something about ‘Oh, my God, Griswold is at risk,’” Mr. Amar said on his podcast last week, referring to the High Court’s 1965 precedent protecting contraceptive access for married couples. “Every single Republican Party platform for the last 40 years has said ‘we hate Roe,’” he countered. “There’s never been anything like that about Griswold.”

Mr. Amar cited University of Texas Law Professor Steve Vladeck, who co-wrote a column claiming that contraceptives might be on the Roberts Court’s chopping block. “Steve Vladeck, you’re my student. You’re my friend,” Mr. Amar told his podcast audience. “What you said is absurd. OK? I’m calling b— on you.”

How can Mr. Amar be sure? In his view, Griswold is a 9-0 case, “easy and obvious,” under the Court’s current approach of recognizing unenumerated rights that are “deeply rooted.” He also pointed out that conservative Justices were clear in their confirmation hearings about Griswold, unlike their caginess on abortion and Roe.

Chief Justice John Roberts : “I agree with the Griswold Court’s conclusion that marital privacy extends to contraception.”

Justice Clarence Thomas : “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.”

Justice Samuel Alito : “The Griswold case, likewise, concerns an issue that is not realistically likely to come before the courts.” As for Eisenstadt v. Baird(1971), which extended contraceptive rights to unmarried couples: “I do agree with the result in Eisenstadt.”

Justice Neil Gorsuch : “I cannot imagine a state trying to pass a law in this area, and I’ve said I cannot imagine the United States Supreme Court taking such a law seriously.”

Justice Brett Kavanaugh : “I agree with Justice Alito and Chief Justice Roberts.”

Justice Amy Coney Barrett : “I think that Griswold is very, very, very, very, very, very unlikely to go anywhere. In order for Griswold to be overruled, you or a state Legislature would have to pass a law prohibiting the use of birth control, which seems shockingly unlikely.”

Mr. Amar’s conclusion? “Seriously, this is not even, like, argument in good faith, that they’re actually trying to put Griswold in play,” he said. “America is not going to move forward if we keep utterly mischaracterizing what the other folks are saying and why.”

***

The left is nonetheless searching far and wide for a politician willing, or dumb enough, to suggest a contraception ban. CNN asked Mississippi Gov. Tate Reeves, and he stumbled through a nonanswer: “While I’m sure there will be conversations around America regarding that, it’s not something that we’ve spent a lot of time focused on.” Mr. Reeves later said he was “surprised” at the question, since banning contraceptives hadn’t come up as an issue in his state.

No doubt there will be a debate over whether some types of birth control, such as intrauterine devices (IUDs), are more than contraceptive, because they might prevent a fertilized egg from implanting or surviving. That argument circulated in 2011, when Mississippi voted on a constitutional amendment to define personhood as beginning at “the moment of fertilization.” It failed 58% to 42%.

For the record, Mr. Reeves’s office tells us that “popular methods of birth control like IUDs and the morning-after pill are not being considered for further restrictions.” The actual question Washington sometimes debates is whether to make the pill available over the counter.

To review, the Supreme Court’s conservative Justices are on record as supporting a legal basis for Griswold in a way they haven’t been with Roe v. Wade. As for the politics, the Governor of Mississippi, one of the country’s reddest states, says he has no interest in banning IUDs or Plan B. But don’t expect the facts to get in the way of a narrative intended to scare voters and discredit the Supreme Court.

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Source: Alito Doesn’t Want Your Contraceptives – WSJ