In addition to so many other implications, it is essential that we consider the impact that the next Supreme Court Justice could have on women’s access to birth control. Believe it or not, it was just 46 years ago that single women gained the legal right to use birth control with the 1972 decision, Eisenstadt v. Baird, which followed the 1965 landmark Supreme Court case, Griswold v. Connecticut, that made birth control legal but only for married women.
These Supreme Court decisions changed the game for women. Countless studies have pointed to the unparalleled impact of birth control in helping women build careers, achieve higher education, have healthier babies when they want to, and improve their overall quality of life. Birth control, for example, was directly tied to 30 percent of the wage gains realized by women between the 1960s and 1990s.
I was just 3-years-old in 1972, and have never consciously known a time when birth control was not available. I have taken birth control for granted as simply being a part of my basic health care. Justice Anthony Kennedy’s resignation has left me gravely concerned. Because now, that hard fought right for women to access birth control hangs in the balance with the selection for his replacement.
Over the last decade, Justice Kennedy has served as the deciding vote on many critical issues. He has been the moderate voice on the Court and his open minded approach to controversial issues will be missed.
Kennedy’s pending retirement puts the ideological balance of the present Court in jeopardy. If his replacement has a history of judicial activism, as Trump has promised, access to birth control could be severely limited or eliminated in this country.
One only has to look at some of the Court’s recent decisions to see how the Court has been moving in this direction, even with Justice Kennedy on the bench. For example, in 2014, in Burwell v. Hobby Lobby, the Supreme Court ruled 5-4 that a family owned company could not be required to cover some or all contraceptives in employee health plans, allowing owners to object on religious grounds. That means that people covered by those plans will have to pay for the entire cost of their birth control out of pocket.
In the imminent future, the Supreme Court will likely take up cases that could further impact a woman’s ability to get the birth control method right for them. The lower Courts have blocked the implementation of the Administration’s proposed two new rules which allow any employer with religious or moral objections to not have to cover contraception in their insurance plans.
For now, no co-pay coverage of the full range of birth control methods is still required for most plans, but an appeal of the lower Court’s decision to block the proposed rules is likely. It is also likely that the Court could ultimately take up the newly proposed domestic gag rule and other efforts to dramatically damage the nation’s only publicly funded family planning program, Title X.
If implemented these policies would make low-income women’s access to birth control even more difficult. Also, the ongoing effort to repeal the Affordable Care Act, and with it the contraceptive coverage of millions of people could come before the Supreme Court.
While I don't remember a time in which birth control wasn't available to me — or a time or place in which it was terribly taboo — I do remember the extraordinary stories told by the women (and men) who fought so hard to make that possible for all of us. They galvanized, they organized and they changed our lives.
The women who started the movement had far fewer resources and power than we have today.
Future generations deserve the same freedoms we have all benefited from. It is our turn now. We have to take action and demand that our senators protect access to birth control — so that the next generation can access it as a part of their basic health care. We have done it before. We can do it again.
Ginny Ehrlich is CEO at Power to Decide, a private, non-partisan, non-profit organization that works to ensure all people — no matter who they are, where they live, or what their economic status might be — have the power to decide if, when, and under what circumstances to get pregnant.