If Roe vs. Wade is Overturned, is that the end for Griswold vs. Connecticut as well?

[Frodo]

How can Roe vs. Wade be overturned without also imperiling Griswold vs. Connecticut?  Both rulings after all are related to one another, and concern the right to privacy. 

[Skill and Chance]

In terms of legal reasoning, perhaps, but get back to me when a state legislature is actually interested in banning birth control.  Note congressional Republicans recently backed a bill to make it available OTC nationwide.

[lfromnj]

In terms of legal reasoning, perhaps, but get back to me when a state legislature is actually interested in banning birth control.  Note congressional Republicans recently backed a bill to make it available OTC nationwide.

Source the Federal one?
https://www.scstatehouse.gov/billsearch.php

SC managed to get one through the state senate but it seems stuck in the state house. But yeah even if it was overturned , it wouldn't matter.

[Person Man]

In terms of legal reasoning, perhaps, but get back to me when a state legislature is actually interested in banning birth control.  Note congressional Republicans recently backed a bill to make it available OTC nationwide.

Source the Federal one?
https://www.scstatehouse.gov/billsearch.php

SC managed to get one through the state senate but it seems stuck in the state house. But yeah even if it was overturned , it wouldn't matter.

So they are interested.

[I spent the winter writing songs about getting better]

No because no state will ban birth control to challenge it.

[Person Man]

No because no state will ban birth control to challenge it.

I will say you are right if Dobbs complicates the midterms. Even Obergefell paved the ways into various forms of advocacy that many people are uncomfortable with and it has cost Democrats many races up and down the ballot. If this indeed happen with Dobbs, I definitely think that in 2022, Republicans will win only narrow majorities followed by Biden's reelection in 2024 with perhaps one chamber flipping back.

Overturning Roe will be a slippery slope and its more likely that it will create backlash than momentum though I wouldn't count out the possibility that it produces momentum to at least
 push forward "parody marriage" laws (when gay people can get married but it not be called "marriage"), age restrictions on condoms, or banning Medicaid from covering birth control. 

[Unbeatable Titan Susan Collins]

I can't see any state passing a law that would ban birth control so I don't see how the case would come up.

[H.E. VOLODYMYR ZELENKSYY]

I can't see any state passing a law that would ban birth control so I don't see how the case would come up.

It’s my understanding that there are still deep non-Atlas red states.

[NewYorkExpress]

Yes in the sense that a conservative state is going to try this and that if there are five to votes to overturn Roe, there are almost certainly five votes to overturn Griswold.

Interestingly, overturning Obergefell is probably going to be harder for Republicans, because the conservative justices (with the exception of Thomas, Alito and maybe Kavanaugh) know that overturning same-sex marriage isn't the political winner for Republicans that overturning legalized abortion or legalized birth control would be with the base (large percentages of the base either don't care about same-sex marriage, or don't emphasize it compared to abortion or other reproductive issues), so I think while they might want to overturn Obergefell political calculations will keep them from doing so.

[Person Man]

Yes in the sense that a conservative state is going to try this and that if there are five to votes to overturn Roe, there are almost certainly five votes to overturn Griswold.

Interestingly, overturning Obergefell is probably going to be harder for Republicans, because the conservative justices (with the exception of Thomas, Alito and maybe Kavanaugh) know that overturning same-sex marriage isn't the political winner for Republicans that overturning legalized abortion or legalized birth control would be with the base (large percentages of the base either don't care about same-sex marriage, or don't emphasize it compared to abortion or other reproductive issues), so I think while they might want to overturn Obergefell political calculations will keep them from doing so.

If Breyer gets replaced by a conservative, it doesn't matter what two conservatives think. All they will need then is either Kavanaugh or Gorsuch to go along with it. At that point, Roberts might just throw in the towel, too.

Then again, if the backlash against Jackson is strong enough, it may or may not happen. Like I said, Obergefell encouraged activism that has created a backlash against Transgender rights.

[Associate Justice PiT]

     According to Gallup, 92% of Americans find birth control morally acceptable. It is highly unlikely that any states would challenge Griswold.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

     According to Gallup, 92% of Americans find birth control morally acceptable. It is highly unlikely that any states would challenge Griswold.

It's possible that some Brownback-style turboconservative Catholic governor would try to restrict Plan B or something in a way that would become a Griswold issue, but the idea of any state trying to ban, say, condoms or diaphragms (which the law at issue in Griswold did ban!) is a sectionalist DINK acid nightmare with no basis in what public opinion or political will is actually like even in non-Atlas-garnet-red states.

[MarkD]

This is a point I've made once before on Constitution and Law board, and it bears repeating now.

Sure, no state, or county, or city/town/village is realistically going to pass a law to simply ban contraceptives, the way Connecticut had passed such a law way back in 1879. But in order to persuade the Supreme Court to overturn Griswold, no state or local government has to resort to that drastic of a measure. Griswold was father to two children: Eisenstadt v. Baird and Carey v. Population Services Int'l. In the latter case, the Court struck down a state law that prohibited the distribution of contraceptives to minors. Mimicking THAT law is a more realistic possibility these days, and it wouldn't even have to be a statewide law in an Atlas blue state. All that needs to happen is some conservative school district somewhere prohibits the faculty members of the schools from distributing contraceptives to students. A school district policy like that will quickly be challenged, the plaintiffs will invoke Carey for why they deserve to win, and that the school district is acting unconstitutionally. The attorney for the school district will argue in rebuttal that Carey, Eisenstadt, and Griswold were all wrongly decided. The attorney for the school district will say that there is not truly any constitutional right to use contraceptives, not in penumbras that emanate from the Bill of Rights (Griswold), or in the Equal Protection Clause (Eisenstadt), or in the Due Process Clause (Carey). The Supreme Court Justices who overturn Roe will likely agree with that argument by the school district, and so out the window goes Griswold.

And if Roe and Griswold both go out the window, then eventually Lawrence v. Texas goes bye-bye too.

[Person Man]

Roe itself is based Griswold and the fact that SCOTUS didn't accept that a fetus has a right to not be aborted.

The way it gets overturned-

* The justices just say that the only way to interpret the law is to create the law, so they don't have jurisdiction (which is ironic because then they would basically be admitting to be a super-legislature)

* They cite Bowers v. Hardwick saying that abortion, like sodomy or prostitution, is too socially unacceptable to be considered a thing people should automatically be left alone in doing or at least that public opinion has turned dramatically against abortion in the last 50 years to the point it was a reasonable thing that people should left alone with to something abnormal and the job of the government to save people from if the "people" so choose.

* They find that a fetus has a right to not be aborted

* They overturn the other basis of the Roe decision itself. They might use some New Dealer-Style logic to show that the Right to Privacy doesn't really exist because of some sort of social-economic aggregation that wasn't considered in 1967 with Griswold.

This is a point I've made once before on Constitution and Law board, and it bears repeating now.

Sure, no state, or county, or city/town/village is realistically going to pass a law to simply ban contraceptives, the way Connecticut had passed such a law way back in 1879. But in order to persuade the Supreme Court to overturn Griswold, no state or local government has to resort to that drastic of a measure. Griswold was father to two children: Eisenstadt v. Baird and Carey v. Population Services Int'l. In the latter case, the Court struck down a state law that prohibited the distribution of contraceptives to minors. Mimicking THAT law is a more realistic possibility these days, and it wouldn't even have to be a statewide law in an Atlas blue state. All that needs to happen is some conservative school district somewhere prohibits the faculty members of the schools from distributing contraceptives to students. A school district policy like that will quickly be challenged, and the plaintiffs will invoke Carey for why they deserve to win, and that the school district is acting unconstitutionally. The attorney for the school district will argue in rebuttal that Carey, Eisenstadt, and Griswold were all wrongly decided. The attorney for the school district will say that there is not truly any constitutional right to use contraceptives, not in penumbras that emanate from the Bill of Rights (Griswold), or in the Equal Protection Clause (Eisenstadt), or in the Due Process Clause (Carey). The Supreme Court Justices who overturn Roe will likely agree to that argument by the school district, and so out the window goes Griswold.

And if Roe and Griswold both go out the window, then eventually Lawrence v. Texas goes bye-bye too.

That's my guess, too. Something along the lines of age restrictions to contraceptives.

And Obergefell. Though now I am a little interested in how they would relitigate Lawrence v. Texas. My guess is that there could be a town that becomes "concerned" about certain forms of same-sex PDA around kids or something and decides to write a law that if you kiss your gay lover in public, you can get a $50 fine or something?

[Senator-elect Spark]

The two seem subtly different to me. Griswold is about birth control use, while Roe deals entirely with the right of a woman to do what she pleases with her body e.g. getting an abortion. The precedent is also different.

There was a long history of states in New England, particularly Connecticut, for example, banning contraception and making it illegal. Many states in NE had a Puritan religious streak that the lens of their moral philosophy was dictated through its purview. I doubt any of those states will challenge that today being that most are socially liberal with the exception of NH (social moderate).

[Amenhotep Bakari-Sellers]

No because there will always be birth control but there don't have to be abortion clinics

Either way you can give your baby up for adoption and they're not gonna stop distribution of Condems because of the AIDS EPIDEMIC

[Blue3]

I would hope not.

If abortion is overturned, it will be for recognizing a certain early start time for legal personhood, not for saying privacy isn't a right.

[brucejoel99]

If a majority of the Court is no longer capable of believing that a woman's bodily & reproductively autonomous right to choose to have an abortion prior to viability can be read into the Due Process Clause of the 14th Amendment, then privacy rights as established in Griswold may as well be thrown out, & the potential for that needs an alarm raised about it.

[Blue3]

If a majority of the Court is no longer capable of believing that a woman's bodily & reproductively autonomous right to choose to have an abortion prior to viability can be read into the Due Process Clause of the 14th Amendment, then privacy rights as established in Griswold may as well be thrown out, & the potential for that needs an alarm raised about it.

Pro-life is not about privacy, it’s about legal personhood. Pro-choice people believe they aren’t legal persons, so then the right to privacy comes in. But only after the question of personhood, that is what the political and legal debates on abortion are all about.

[brucejoel99]

If a majority of the Court is no longer capable of believing that a woman's bodily & reproductively autonomous right to choose to have an abortion prior to viability can be read into the Due Process Clause of the 14th Amendment, then privacy rights as established in Griswold may as well be thrown out, & the potential for that needs an alarm raised about it.

Pro-life is not about privacy, it’s about legal personhood. Pro-choice people believe they aren’t legal persons, so then the right to privacy comes in. But only after the question of personhood, that is what the political and legal debates on abortion are all about.

Then why did several of the conservative justices make clear during oral arguments that they don't believe abortion is a constitutionally-guaranteed right because such a guarantee isn't explicitly provided for in the main text? I believe it was Justice Thomas who said something along the lines of, "What does the right to an abortion even mean? If you say 'the 2nd Amendment' or 'the right to property,' then I know what you're talking about, but if you say 'the right to an abortion,' then I don't know what you're talking about," & if at least some of the conservative justices are a-okay in straight-up thinking that about abortion & its fundamental tie to the 14th Amendment's Due Process Clause's concept of liberty, then there's nothing stopping them from quite literally saying the exact same thing, just about privacy rights instead of abortion rights.

Not to mention, it just can't be understated how much of an extreme stretch the legal fetal personhood argument is, & that's even with ACB on the Court. Nobody of the Court's academic pedigrees - even somebody of an extremely originalist disposition - could hope to credibly invoke it in an abortion case that managed to come before them & get away with it.

No, what's at issue here is a fundamental opposition on the part of many ideological conservatives to a woman's right to bodily & reproductive autonomy. Although we have a long historical tradition of protecting that right from interference not only on the state's part, but also on the part of others (e.g., laws that criminalize rape; seriously, the Framers were so unconcerned that any rival factions may interfere with this right that they didn't even feel as if was actually necessary to specifically enumerate it), believing that such a right exists (as provided for by an objectively fair reading of Griswold) necessarily entails that abortion must be protected because doing so would be necessary in order to protect the overall right (granted, it's true that Buck v. Bell has still never been formally overturned, but it's held in roughly the same regard as Korematsu was prior to its own overturning in 2018), but of course, many conservatives don't like that for obvious reasons, hence the alternative belief: that there just isn't a legally guaranteed right to bodily & reproductive autonomy.

Of course, even if such a belief weren't objectively horrifying enough as to not be totally viable, it's still not totally viable anyway because, in purporting to make the balancing test between a woman's supposed right to bodily & reproductive autonomy & the state's interest in protecting fetuses a wholly legislative prerogative with no role whatsoever for the courts, it would require the Court to start ruling consistently in a manner that would require them to overturn the ideas of substantive due process & incorporation with it entirely, which even they'd be loath to do, hence the rationale that underlies the established effort to overturn Roe's holding in effect, if not formally: by attempting to challenge the viability line, as is being done in Dobbs, it could be argued that the "undue burden" standard would actually need to remain in effect but be left up to the states, insofar as certain states would still have to regulate the abortions that they'd be formally prohibited from formally prohibiting within their states: even just solely in the absence of the viability standard, states could still just regulate that any abortion must occur within the first 6 weeks of pregnancy, i.e., the timeframe during which many women don't even know that they're pregnant yet, thereby effectively prohibiting abortion without technically banning it. (To say nothing of the outright formal challenges to Roe's holding, like the Alabama attempt & the Texas fiasco.)

[Okay, maybe Mike Johnson is a competent parliamentarian.]

That line of argument shows a presumption of bad faith that doesn't really become you, brucejoel. Obviously the current SCOTUS majority thinks, acts, and justifies its actions in bad faith, but there are many, many people, including many who support lax abortion laws as a matter of policy, who do not find traditional substantive due process jurisprudence convincing and/or who just don't agree with proponents of the Roe rationale on which side of the privacy/socially relevant behavior line abortion falls on. Add that to the fact that the Roe rationale is not actually the same as Douglas's infamous "penumbras" in Griswold, and it really isn't that difficult to imagine someone concluding in good faith that one of those two cases was correctly decided and the other was not.

[Marx]

It isn't as if liberals or Democrats have consistently supported a fundamental right to privacy either - Joe Biden in particular is famously hostile to the concept, both authoring the PATRIOT Act and the 1994 Crime Bill with its public sex offender registry construct.

[All Along The Watchtower]

Quite plausibly, yes.

[Person Man]

I would hope not.

If abortion is overturned, it will be for recognizing a certain early start time for legal personhood, not for saying privacy isn't a right.

The latter would basically be a judicial universal ban on abortion. Of course, there’s no such thing as judge made criminal law but that might open up WoM lawsuits and Federal Civil Rights lawsuits. I don’t think Gorsuch, Kavanaugh, or Roberts want that anyway. They’d probably decide to overturn privacy in general. That could be the middle ground between fetal personhood and an abortion carve out against privacy.

[Frodo]

In terms of legal reasoning, perhaps, but get back to me when a state legislature is actually interested in banning birth control.  Note congressional Republicans recently backed a bill to make it available OTC nationwide.

...as you were saying?

Mississippi Governor Won't Rule Out a Possible Ban on Birth Control If Roe Is Overturned