Overturning Griswold

I have never for one second believed people who said that after Dobbs, there was no way that the Court would go after other key privacy cases such as Griswold. Of course this is what they are going to do. Don’t trust the words of Republican elites. Trust their actions.

Today, the same thing is happening with contraception. Unhinged conservative fanatics are building up momentum to ban the most common types of contraception, principally by lying that they actually induce abortions somehow, and they are finding success at the state and local level. As Lauren Weber reports at The Washington Post, Republicans in both Missouri and Louisiana recently blocked pro-contraception bills by lying that they cause abortions. A right-wing Idaho think tank is urging the state to ban the morning-after pill and IUDs by claiming, falsely, that they are “abortifacients.”

Iowa’s Republican government has already ended subsidies for emergency contraception for victims of sexual assault. And among the victories of the so-called Alliance Defending Freedom (ADF)—the most important right-wing legal group, which has won 15 Supreme Court cases since 2011—is Burwell v. Hobby Lobby, which ended the requirement for employer-based insurance to cover contraception.

Even as these events transpire, sundry GOP elites are nonetheless insisting that nuh-uh, we definitely aren’t coming for your birth control pills, pinky swear. A National Republican Senatorial Committee memo recently urged GOP senators to express their support for contraception. Axios reports the memo “tells its candidates to highlight their support for a bill introduced by Sen. Joni Ernst (R-Iowa) that aims to increase the availability of birth control options.” Sen. Katie Britt (R-AL) put out a statement claiming, “There is no threat to access to contraception.”

But then on Wednesday, those same Senate Republicans filibustered a pro-contraception bill. This contradictory stance naturally required some excuses. “It’s a phony vote because contraception to my knowledge is not illegal. It’s not unavailable,” said Sen. John Cornyn (R-TX). Britt lobbed overheated claims that the bill would require schools to hand out condoms to schoolchildren.

Despite this filibuster, it is vanishingly unlikely that Senate Republicans would actually pass a bill to ban contraception, because that’s not how they do things. They’ll get the courts to do it for them.

In his concurrence in the Dobbs decision, Clarence Thomas took aim at Griswold v. Connecticut, which legalized contraceptive use among married couples. Since Roe relied on substantive due process, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote, referring to decisions that legalized gay sex and marriage. ADF leader Alan Sears told The New Yorker that outright banning the pill was a reach goal. “It may be that the day will come when people say the birth-control pill was a mistake,” he said.

This is how the modern conservative policy apparatus functions. Crazed extremists decide on a terrible goal, legal spear-carriers recruit candidates for (often fraudulent) lawsuits, momentum builds, and eventually partisan hacks on the bench give their rubber stamp of approval. What was deranged lunacy five years ago is settled law today. Thomas’s opinion was a signal to ADF to gear up this process again.

I also await Thomas’ final opinion before he retires being overturning Loving.