The other day I said that it did not seem likely that the Supreme Court would ever have an occasion to reconsider the existence of a constitutional right to contraception, since no legislature would ban it. I received a lot of thoughtful emails in response. The strongest point in the mailbag, I think, was that it would be hard for the Court to overturn Roe without seriously undermining Griswold.
I think that’s right. A Court that wanted to overturn Roe could try to distinguish between abortion and contraception–but that might involve raising questions about the constitutional “personhood” of the unborn that the justices might prefer to duck. It could rule that there’s no such thing as substantive due process, but that ruling would sweep way too far to get five votes. The remaining option would be to say that there is no “right to privacy” (beyond those aspects of privacy protected by specific constitutional provisions).
So let me qualify my earlier comment: I still think it’s highly unlikely that Griswold will ever be explicitly overruled. It might, however, be overruled sub silentio, in much the same way that West Coast Hotel v. Parrish explicitly overruled Adkins v. Children’s Hospital and overruled Lochner v. New York sub silentio. I’m not saying that this scenario is likely–but it’s more likely than an explicit overruling.