We all take for granted the idea that we can use contraception and that we can marry whom we please.
Well, not so fast.
If the Trump Supreme Court and the Trump-Musk administrations have their way, you may no longer have the right to use birth control nor have the right to marry whom you please.
The Republican attack on contraception
For most of our history, contraception was whispered about. In most states, it was illegal to manufacture, sell, use, or teach about contraceptive devices. Under the Connecticut Comstock Act of 1873 it was illegal to use “any drug, medicinal article, or instrument for the purpose of preventing conception“.
In 1961 Estelle Griswold and Dr. Lee Buxton opened a clinic in New Haven to teach about contraception and provide contraceptives. Griswold was arrested, found guilty, and appealed. Her case went to the Supreme Court who ruled in Griswold v. Connecticut, 1965, that “marital privacy” is a protected right and contraception is a protected private matter — just as Roe v. Wade was based largely on privacy rights.
In his concurrence with overturning Roe, Justice Thomas wrote: “In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, . . . Because any substantive due process decision is ‘demonstrably erroneous’ we have a duty to ‘correct the error’ established in those precedents.” According to Thomas, it is “erroneous” for people to have the right to contraception and Griswold was a mistake.
In an attempt to protect access to contraception, in July 2022 the House of Representatives passed the “Right to Contraception Act”. EVERY HOUSE REPUBLICAN VOTED “NAY”.
The same groups who worked for 50 years to overturn Roe are quietly working to overturn Griswold because they claim contraception is a “form of abortion” – they lie, it is not.
The right to marry whom you please
But it goes much deeper than Griswold — let’s recall that another “right” that we take for granted hangs on the very thin thread of one or two votes in the Not-So-Supreme Court: That is the right to marry whom we please.
Consider two cases: Loving v. Virginia, and, Obergefell v. Hodges.
For decades, marriage between people of different races was illegal in the US, mainly in the Southern states.
In 1959, in Caroline County, Virginia, Richard Loving, a white man, and his wife Mildred Loving, a person of color, were convicted of violating Virginia’s Racial Integrity Act of 1924, which criminalized marriage between people classified as “white” and people classified as “colored”. Caroline County circuit court judge Leon M. Bazile sentenced them to prison but suspended the sentence on the condition that they leave Virginia and not return. The Lovings filed a motion to vacate their convictions on the ground that the Racial Integrity Act was unconstitutional, but Bazile denied it. After unsuccessfully appealing to the Supreme Court of Virginia, the Lovings appealed to the U.S. Supreme Court, which agreed to hear their case.
In June 1967, the Supreme Court issued a unanimous decision in Loving v. Virginia that overturned their convictions and struck down Virginia’s Racial Integrity Act. The Court found that the law violated the Equal Protection Clause because it was based solely on “distinctions drawn according to race” and outlawed conduct—namely, that of getting married—that was otherwise generally accepted and that citizens were free to do.
Obergefell v. Hodges, 2015, is a landmark decision of the Supreme Court which ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The 5–4 ruling requires all 50 states, the District of Columbia, and the Insular Areas to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with equal rights and responsibilities.
Griswold, Loving, and Obergefell HAVE NEVER BEEN WRITTEN INTO BLACK LETTER LAW. We can use contraception, people of different “races” can marry, and same-gender marriage – all are legal because of SCOTUS decisions based on doe process and equal protection, both of which are enshrined in the 14th Amendment – which also enshrines birthright citizenship, which Trump has said must be removed from the Constitution. Thomas and Alito wrote, when they overturned Roe v. Wade, that Roe was based on an error – the same “error” on which Griswold, Loving, and Obergefell are based.