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With Roe seemingly undone, other rights dating back to contraceptives case could fall under attack

Mrs. Estelle Griswold (left), medical advisor and Executive director of the Planned Parenthood Clinic in New Haven, and Mrs. Ernest Jahncke, President of Parenthood League of Connecticut, INC., flash a victory sign as a result of the court's decision that the birth control law is unconstitutional in 1965.Bettmann/Bettmann Archive

Nearly 60 years ago, before it grappled with abortion protections enshrined — for now — in Roe v. Wade, the Supreme Court handed down a landmark ruling that would serve as the foundation for modern privacy rights, a building block for the advancement of sexual and reproductive rights that helped launch a sexual revolution.

The case, known as Griswold v. Connecticut, was centered on the legal question of whether a person has rights to personal autonomy that aren’t specifically spelled out in the Constitution, a controversial area of law the court was looking to clarify at the time. In the Griswold case of 1965, the Supreme Court ruled that a married couple in Connecticut had an unenumerated right to privacy — a right that could be inferred from other constitutional safeguards but was not explicitly stated in the document — protecting them against state restrictions on contraceptive access.

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The case grounded a right to privacy in a way that would be reaffirmed and sharpened in Supreme Court cases in the decades that followed, while extending freedoms to new corners of the sexual and social justice movement: the right for single people (not just married couples) to access contraceptives; the right to an abortion; the rights of same-sex couples to have sex; and ultimately their right to marry. The Griswold case even influenced the right to interracial marriage, though other legal principles of equality were also involved in that landmark case, legal experts say.

Now, though, legal analysts and reproductive rights advocates warn, all of that social and political change could be erased should the Supreme Court choose to extend, or build off of, the reasoning on display in Justice Samuel Alito’s draft opinion overturning Roe v. Wade, the 1973 decision affirming a person’s right to an abortion.

Alito, in his draft opinion, dismisses that possibility, “None of the other decisions … involved the critical moral question posed by abortion,” the draft says. “Our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

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And during his own confirmation hearings in 2006, Alito said he believes that “the Constitution ... protects the right to privacy in a number of ways.” He spoke carefully but seemed to back Griswold’s holding even if not some of its legal reasoning.

There may also be a kind of extrajudicial bulwark protecting Griswold. While abortion rights enjoy majority support in the country, backing for the freedom to use contraceptives is close to unanimous — over 90 percent, according to a 2019 Gallup survey.

But other legal observers say it is important to look past Alito’s assurances to the powerful and potentially consequential wording of his draft. The leaked opinion by Alito, they say, sets a much higher bar for establishing unenumerated rights, a standard that could open Griswold, and its legal progeny, to reconsideration by state courts, which might throw the issue before an increasingly conservative, and assertive, high court.

“All of that is on the table,” said Kenji Yoshino, a constitutional law professor at New York University. He added, that the Alito opinion “eviscerates a lot of the so-called right-to-privacy cases.”

According to Yoshino and other legal analysts, Alito’s test for privacy rights lies in whether a person’s claimed unenumerated right is “deeply rooted in this nation’s history and tradition,” a narrow framing guided by a 1997 Supreme Court decision prohibiting physician-assisted suicide. His proposed standard looks past the more permissive language of the court’s majority in the more recent gay-marriage case that calls for viewing rights through a lens that “respects our history and learns from it without allowing the past alone to rule the present.”

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The Griswold decision, Yoshino said, was “a really important modernization of the Constitution for the 20th century and the 21st century, and all of that is in peril now if this draft opinion becomes the law of the land.”

“Everything is now in play — who knows what this new landscape would bring,” Yoshino said.

Conservative legal experts critical of the Griswold decision say their opposition is centered not on the question of whether a married couple should have access to contraceptives, but the reasoning behind the decision. By a 7-2 vote, the court found that various rights guaranteed throughout the Bill of Rights created a number of what the court called “penumbras,” or legal zones, that established an inherent right to privacy, even if not spelled out. That finding quickly came under attack.

“One of the reasons people have criticized Griswold is the suggestion of this amorphous, generalized interest of privacy that could mean a number of different things,” said Edward Whelan, the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, a Washington, D.C.-based conservative think tank and advocacy group.

Whelan called the Connecticut ban on access to contraceptives a “lark” that could have been overturned through other, more legally sound reasoning.

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But, he argued, there is nothing in Alito’s opinion that suggests that Griswold should be overturned, either. He said Alito’s historical analysis of abortion laws is far different than an analysis of the historical use of contraceptives, and he called it “absurd” to tie the two cases together.

“This is scare mongering; it’s designed to broaden the base of political opposition to a [Roe] ruling,” Whelan said. “At bottom, the concern about Griswold is about its concoction of generalized privacy interests that seems to license justices to make up a lot of things. It’s not about any desire to ban contraceptives.”

Many other legal experts disagree, arguing that the questions about the privacy right standard, and the potential implication for the Griswold case, go beyond the theoretical. The cases at stake are tied together by a common thread of a right to privacy that undergirds protections for sexuality, intimacy, and reproductive rights — interests that have been attacked by the right.

Legal experts say that Alito’s attempt to limit the scope of his opinion to abortion cases will be insufficient in stemming the flood of future politically motivated legal challenges that will arise if his test is ultimately engraved in court doctrine.

That could open the door, legal analysts say, for the court’s conservative majority, or a future court, to overturn Griswold, a possibility that seems to some more realistic given the boldness of the current court’s apparent willingness to outright abolish the 50-year-old precedent of Roe.

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Already, conservative political leaders, galvanized by the strong language of Alito’s draft opinion, have mobilized in support of a nationwide ban on abortion. Some have challenged the legitimacy of emergency contraceptives, such as Plan B, or morning-after pills. And they have directly attacked Griswold, the underpinning of all those cases.

In Arizona, a leading Republican candidate for US Senate, Blake Masters, said he would only confirm federal judges who understand that cases such as Roe and Griswold “were wrongly decided, and that there is no constitutional right to abortion.” Masters argued that the Supreme Court justices in the Griswold case “wholesale made up a constitutional right to achieve a political outcome.”

Indeed, conservatives across the country were attacking Griswold even before Alito’s opinion was leaked. In February, at least three Republican candidates for attorney general in Michigan uniformly denounced the Griswold ruling during a debate, saying the decision infringed on state rights. Then, in March, US Senator Marsha Blackburn of Tennessee appeared to attack Griswold in a video statement criticizing Supreme Court nominee Ketanji Brown Jackson. Blackburn said Griswold and other “unsound rulings” like it “confuse Tennesseans and leave Congress wondering who gave the court permission to bypass our system of checks and balances.”

The Griswold case was also discussed during the confirmation hearings for Supreme Court Justice Neil Gorsuch, whose Oxford University dissertation appeared to challenge the decision and others that followed from it. Likewise, Justice Amy Coney Barrett, during her confirmation hearings, refused to declare Roe and Griswold as “super-precedent” cases that should be considered immune from being overturned.

For those who advocate for reproductive rights, the apocalypse seems almost in sight.

If Griswold goes, “Goodbye sexual revolution, goodbye 1960s,” said Priscilla Smith, head of Yale Law School’s Reproductive Rights and Justice Project.

Smith said that the more recent privacy cases decided by the Supreme Court, such as the same-sex marriage decision and a 2003 case invalidating Texas’s ban on gay sex, involved a more refined definition of rights to autonomy and due process rights. But they are all modern rights that branch off the Griswold tree.

“Who knows, politically, where those winds will blow,” Smith said, adding that, if Alito’s opinion is final, “the basis for Griswold is gone.”

“It’s completely unrealistic, and would take us back 150 years,” she said. “Controlling people’s sexual behavior is not only impossible, but it also intrudes on the most basic notion of freedom and liberties that we have as individuals.”

Rebecca L. Davis, a history professor at the University of Delaware and author of “Public Confessions: The Religious Conversions that Changed American Politics,” said that the legal and political wrangling threatens to unravel decades of work to affirm sexual and reproductive rights that most Americans recognized and embraced long before the Griswold case.

“It is a wholesale attack on the idea of women as full, complete, equal citizens,” she said, arguing that America’s sexual revolution began long before the Supreme Court affirmed in Griswold that “you could have sex for purposes other than reproduction.”

By 1965, she said, “Connecticut was way behind the times.”

Going back to the 19th century, Davis said, men and women had increasingly found ways to control fertility and birth rates, through abortion or the use of contraceptives. But those efforts, she said, had always been under attack by a conservative religious right looking to make its beliefs and morality the law of the land. That led to the passage in the late 19th and early 20th century of restrictions on birth control access, and anti-obscenity laws, which entailed restrictions on what could be written in books or played in theaters. And, abortion laws.

There have always been “powerful people who can pass laws that reflect what they think or rule on court cases that reflect on what they’re thinking,” Davis said.

With Roe v. Wade apparently about to be undone, she said, “we’re all going to have to start imagining what this is going to look like.”

Dr. Jennifer Childs-Roshak, of Planned Parenthood League of Massachusetts, said the potential ramifications of the Alito opinion should serve as a rallying call to support and expand abortion rights and reproductive care across the country, particularly in states like Texas, where abortion is a crime once a fetal heartbeat can be detected, which can occur as early as six weeks into a pregnancy. In Mississippi, where the case to overturn Roe v. Wade originated, there is currently just one abortion clinic in the entire state.

As recently as four years ago, Massachusetts, considered a liberal blue state that supports a woman’s right to choose, still had laws on the books that criminalized adultery, premarital sex, and contraception, including a law that made it a crime for clinicians to help in “procuring a miscarriage.” The state in 2018 passed legislation vacating those laws, a show of support for reproductive rights and a safeguard should Roe v. Wade ever be overturned. It’s an action that other states should consider, Childs-Roshak said.

“It is a really important time right now, because really the door is wide open, based not only on what the Alito opinion directly says but also what is suggests,” said Childs-Roshak.

The “language used in that draft was super aggressive,” she said, and suggests that overturning Roe v. Wade “was not the end goal.”


Milton J. Valencia can be reached at milton.valencia@globe.com. Follow him @miltonvalencia and on Instagram @miltonvalencia617.