In the wake of last week’s momentous report that five conservative Supreme Court justices appear poised to strike down the Roe v. Wade decision that established a constitutional right to abortion almost half a century ago, politicians and pundits have started to ponder a previously unthinkable question.
Could contraception and same-sex marriage come next?
“This is about a lot more than abortion,” President Biden warned Wednesday. “What are the next things that are going to be attacked? Because this MAGA crowd is really the most extreme political organization that’s existed in recent American history.”
A new Yahoo News/YouGov poll, however, shows just how unpopular such attacks would be.
The survey of 1,577 U.S. adults, which was conducted from May 3 to 6, found that just a quarter (26%) think same-sex marriage should be “illegal in America,” while nearly 6 in 10 (58%) think it should be legal. Sixteen percent are unsure.
That’s a striking degree of consensus in a bitterly polarized country that opposed same-sex marriage by a nearly identical margin as recently as 2004. Even among Republicans, fewer than half (46%) now say same-sex marriage should be illegal, and nearly as many (39%) say it should be legal.
Public opinion on contraception is even more lopsided. A staggering 83% of Americans believe that contraceptives (“like birth control pills”) should be legal, while just 6% believe they should be illegal. A full 86% of self-identified Democrats, 85% of self-identified Republicans and 85% of self-identified independents favor legal contraception, making it one of the few questions that almost everyone across the political spectrum agrees on.
In comparison, 55% of Americans say abortion should be legal in all or most cases; 34% say it should be illegal in all or most cases.
If the Supreme Court does overturn Roe, it’s unclear whether emboldened conservative activists will actually go after birth control and marriage equality the way they went after abortion. But legal scholars say it’s a distinct possibility.
The theory is that Roe belongs to a long series of Supreme Court decisions — starting with Griswold v. Connecticut in 1965, which outlawed state prohibitions on contraception, and culminating with Obergefell v. Hodges in 2015, which outlawed state prohibitions on same-sex marriage — that have consistently affirmed an implied constitutional right to privacy in intimate matters of heart and home.
By overturning Roe on the grounds that abortion is neither explicitly mentioned in the Constitution nor “deeply rooted in the Nation’s history and traditions” — which is what Justice Samuel Alito’s leaked draft opinion would do — the court would invite similar challenges to other rights, such as access to birth control and same-sex marriage, that are also based on an implied constitutional right to privacy. (The poll did not ask about another major privacy rights decision, the court’s 6-3 ruling in 2003 on Lawrence v. Texas, which made anti-sodomy laws unconstitutional.)
In his draft opinion, Alito tried to limit his reasoning to Roe alone. “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” he wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
But in reality such a ruling would “send up a flare” to conservative activists, according to Sharon McGowan, legal director at Lambda Legal.
“Overturning Roe will be most dangerous because of the signal it will send lower courts to disregard all the other precedents that exist,” McGowan told the Associated Press.
So far, the National Republican Senatorial Committee has advised its candidates to declare that “Republicans DO NOT want to take away contraception.”
But at least one prominent Senate hopeful — Arizona Republican Blake Masters, who is seen as the favorite to win former President Donald Trump’s endorsement in that state’s GOP primary — has spoken out against Griswold.
“[I will] vote only for federal judges who understand that Roe and Griswold ... were wrongly decided,” Masters’s campaign website read as recently as May 7.
“In Griswold, the justices wholesale *made up a constitutional right* to achieve a political outcome,” he added on Twitter. “I am opposed to judges making law.”
After reports about Masters’s views on Griswold surfaced over the weekend, the candidate explained that he doesn’t “support a state law or federal law that would ban or restrict contraception — period. And Griswold was wrongly decided. Both are true.”
He also removed the mention of Griswold from his website and threatened to sue a local Arizona reporter for defamation.
This back-and-forth on Griswold may preview future dynamics on the right, with candidates signaling their originalist bona fides to the base while also disowning the most unpopular policy implications of those views.
Yet according to the new Yahoo News/YouGov poll, even legalistic arguments that cases like Griswold were “wrongly decided” are likely to fall flat with most Americans. Asked directly about Griswold and subsequent rulings from “decades ago” that found “both married and unmarried couples have a constitutional right to buy and use contraceptives without government restriction,” 79% of Americans — including 84% of Democrats, 82% of Republicans and 79% of independents — say they favor such decisions. Just 8% are opposed.
Likewise, nearly three-quarters of Americans (74%) agree that “access to contraception” is “a constitutional right that people in all states should be entitled to” rather than “something individual states should be able to outlaw” (12%).
The corresponding numbers on same-sex marriage are less dramatic, but still clear-cut. A majority of Americans think same-sex marriage is “a constitutional right that couples in all states should be entitled to” (55%) and favor Obergefell (54%), the decision in which “the Supreme Court required all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages.”
Fewer than 3 in 10 oppose Obergefell (29%) and believe same-sex marriage is “something that individual states should be able to outlaw” (28%).
The Yahoo News survey was conducted by YouGov using a nationally representative sample of 1,577 U.S. adults interviewed online from May 3 to May 6, 2022. This sample was weighted according to gender, age, race and education based on the American Community Survey, conducted by the U.S. Bureau of the Census, as well as 2020 presidential vote (or nonvote) and voter registration status. Respondents were selected from YouGov’s opt-in panel to be representative of all U.S. adults. The margin of error is approximately 2.7%.