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It's not just abortion; the right is coming for your contraceptives, too • Minnesota Reformer [1]

['Marshall H. Tanick', 'More From Author', 'March']

Date: 2024-03-22

The decision last month in the in-vitro fertilization case by the Alabama Supreme Court — LePage v. Center for Reproductive Medicine — recognizing that “personhood” occurs upon fertilization of an egg, has prompted some observers to forecast where a second Trump administration might go in stifling reproductive rights.

It’s an obvious line of inquiry given the high court’s ruling two years ago in Dobbs v. Jackson Women’s Health Organization.

With abortion rights gone, the assault might focus on another pillar of American privacy rights, a 1960s Supreme Court precedent that enshrined the right of people to make decisions about contraception.

The evangelicals and movement conservatives who clamor to roll back — or eliminate — reproductive rights trace their antipathy to Griswold v, Connecticut, a 1965 case that invalidated the prohibition of contraceptives. Conservatives consider that case like the “original sin” and the crucial forerunner to the 1973 decision Roe v. Wade, authored by Minnesota’s own Justice Harry Blackmun, which gave the constitutional protection to abortion that Dobbs destroyed 49 years later.

Griswold gives

The Griswold decision, authored by liberal lion Justice William O. Douglas, provided constitutional jurisprudence with the phrase “penumbras” — the emanations from shadows — that gave birth to a right of privacy silently but implicitly embedded in various provisions of the U.S. Constitution, particularly the 9th Amendment, which states that rights may exist even if not expressly enumerated in it.

The term was applied to a Connecticut criminal law making it illegal to dispense contraceptives, a prohibition the court deemed violative of newly-found privacy rights of couples, a married one in this case.

Those “penumbras” of privacy formed the bedrock of the Roe ruling eight years later.

Griswold is one of three major cases — along with LGBTQ sexual rights and same-sex marriage — that Justice Clarence Thomas, in a concurring opinion in the Dobbs case, urged the justices to “reconsider,” a euphemism for overturning.

Conservatives have long been gunning for Griswold.

Thomas’ imploration drew no pushback from his conservative colleagues or other anti-abortion quarters, suggesting that they may move in that direction in extending their precedent-shattering wrecking ball.

The far right faction that Thomas represents has another crack at it on Match 26th, when it hears the case questioning whether the abortion pharmaceutical mifepristone can stay on the market, which an avowed anti-abortion federal judge in Texas has proscribed.

The court’s decision in a few months may foreshadow what’s to come for access to contraceptives.

Minnesota matters

Meanwhile, Minnesota has gone in a different direction regarding reproductive rights.

The Minnesota Court of Appeals recently ruled that a pharmacy in McGregor in Aitkin County violated the sex discrimination provision of the state Human Rights Act when it refused to dispense a woman’s prescription for emergency contraception known as Ella, in a case entitled Anderson v Aitkin Pharmacy.

The decision, reversing a jury verdict there, came down on the same day that large pharmacies such as CVS and Walgreen’s announced the first availability of over-the-counter birth control pills, as authorized last summer by the Food and Drug Administration, which is a litigant in the pending mifepristone case.

The Minnesota appellate court ruling is the latest in a long line of Minnesota jurisprudence and statutes placing it in the forefront of accommodating reproductive rights.

In 1995, the state Supreme Court recognized a “fundamental” right to abortion under the state constitution, pointing to its counterpart provisions in the U.S. Constitution and cited by Blackmun in the Roe case.

The Legislature and Gov. Tim Walz doubled-dawn last year, with narrow DFL majorities in both chambers removing nearly all restrictions on abortions, following a similar rejection of abortion regulations handed down by a Ramsey County district court.

But Minnesota’s restriction-free status could be jeopardized if abortion foes gain sufficient strength in Congress and control of the White House and enact some type of national abortion plan.

And if the court strikes down Griswold, don’t be surprised if conservatives start moving on a parallel track to start banning contraceptives.

So, the slogan that’s been so effectively used by reproductive rights advocates here and elsewhere that “abortion rights are on the ballot” might have to be supplemented to include: “The right to contraception is on the ballot.”

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[1] Url: https://minnesotareformer.com/2024/03/22/its-not-just-abortion-the-right-is-coming-for-your-contraceptives-too/

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