The Fight to Protect Contraceptive Rights After Dobbs

In a post-Roe v. Wade America, methods to prevent pregnancy are more important than ever. However, some states have already started limiting access to contraceptives. Many conservative states have introduced legislation to ban contraceptives, and Missouri has already banned public funding for two common contraceptives: intrauterine devices (UIDs) and emergency contraceptive Plan B pills. Arkansas, Mississippi, Missouri, and Texas have prohibited Planned Parenthood from receiving public funding through their Medicaid programs. Six states, including Arkansas, Georgia, and Mississippi, explicitly permit pharmacists the right to refuse to refill birth control prescriptions on moral or religious grounds with no legal, financial, or professional consequences, and many other states allow for conditional refusal of health care services relating to contraception and pregnancy.

The Right to Contraception Act, which Rep. Kathy Mannings of North Carolina introduced in the House of Representatives on July 15 following the Supreme Court’s decision on Dobbs v. Jackson Women’s Health Organization, would allow the Department of Justice, providers, and individuals harmed by the unlawful (under this legislation) restriction of contraceptives to go to court to protect the codified right to birth control. In a July 15 press release, Manning said that “contraception is key to achieving gender equality, improving health outcomes for women and their families, bolstering educational and economic opportunity for all, and ensuring people are in control of their own bodies and futures.”

On July 19, Senators Edward Markey, D-Mass., Mazie Hirono, D-Hawaii, and Tammy Duckworth, D-Ill., introduced a companion bill in the Senate; however, the fate of that bill remains uncertain in an evenly divided Senate. In a July 19 press release, Hirono emphasized the urgency of codifying the right to contraception, saying that “for this far-right results-oriented Supreme Court and MAGA Republicans, controlling women’s bodies doesn’t just stop at forcing women to give birth, they actually want to ban contraception.”

On July 21, the House passed the Right to Contraception Act with a vote of 228 to 195; only eight of 213 Republicans joined the Democrats in backing the bill. But its prospects aren’t as promising in the Senate; on July 27, after Markey requested unanimous consent to pass the bill to speed up the process, Sen. Joni Ernst, R-Iowa, blocked the bill, and no roll call vote was taken. In a July 27 press release, Markey wrote that the Republicans in Congress were blocking “commonsense legislation” and said that on that day, “Republicans showed the American people where they stand: no abortions, and no birth control to prevent the need for one.”

Ernst subsequently offered an existing proposal to increase access to over-the-counter (OTC) birth control by incentivizing oral birth control manufacturers to file for FDA OTC approval by waiving registration fees and prioritizing requests. Ernst’s proposal with Republican Sen. Cory Gardner of Colorado, the Allowing Greater Access to Safe and Effective Contraception Act, was first introduced in 2017.

Markey, however, argued that Ernst’s proposal would not protect people’s rights to obtain contraceptives. “The over-the-counter option doesn’t help patients if their states are chipping away at their right to birth control,” Markey said, especially if the Supreme Court overturned the cases that recognized an individual’s federal right to obtain birth control. Ernst’s proposed bill could also restrict access to contraceptives for individuals under 18, as Ernst only recognized “women 18 and older” to receive over-the-counter access.

According to a 2022 Gallup poll, 92% of Americans think birth control is “morally acceptable.” The low Republican support for the Right to Contraception Act isn’t tied to what Americans want but to the party’s definitive anti-abortion stance. Many anti-abortion organizations have stated that the bill’s “broad” definition of contraception could allow pill-induced abortions. Marjorie Dannenfelser, President of Susan B. Anthony Pro-Life America, an NGO seeking to end abortions in America by supporting anti-abortion politicians, wrote in a letter to Congress that the Right to Contraception Act could allow access to “chemical abortion drugs.” Rep. Cathy McMorris Rodgers, R-Wash., said in her remarks to the Committee on Rules that the Right to Contraception Act was a “trojan horse for more abortions” and tweeted that the act would “force people to violate their religious and sincerely held beliefs.” Rodgers claimed that the bill endangered the health and safety of women and claimed “a Planned Parenthood can use taxpayer dollars to sterilize a 13-year-old without her parents’ knowledge” and “a Medicaid beneficiary who has a mental disability can be sterilized without informed consent.”

In her remarks, Rodgers also referenced the Allowing Greater Access to Safe and Effective Contraception Act introduced in 2017 and reintroduced last week on July 27, saying, “I support their access to contraception,” but claimed the Democrats were unwilling to work with the Republicans on allowing greater access to birth control over-the-counter, as stipulated in the Allowing Greater Access to Safe and Effective Contraception Act. This contraception act, however, does not codify an individual’s right to obtain birth control at a federal level and could reduce access to contraceptives for individuals under 18.

Both Rodgers and Dannenfelser provocatively referred to the bill as “the Payouts for Planned Parenthood Act,” with Rodgers saying that “it would send more taxpayer dollars to Planned Parenthood, freeing up more funds for them to provide abortions.” Rodgers, in her remarks, said the bill reflected an extreme “agenda to nationalize abortion for all nine months of pregnancy.”

After the landmark overturning of Roe v. Wade, other precedents pertaining to reproductive rights have been threatened. In his concurring opinion issued with the ruling, Justice Clarence Thomas declared that the decision should open up further decisions of the high court against “demonstrably erroneous” precedents. He specifically called out the 1965 Griswold v. Connecticut decision, which protects the rights of married couples to obtain contraceptives without governmental restrictions, and wrote that the court has the “duty to ‘correct the error’ established in those precedents.”

Duckworth, who helped introduce the Right to Contraception act in the Senate, said in a press release that “I refuse to let my daughters grow up in a world with fewer rights than I had,” in response to the possibility of striking down the 57-year-old Griswold decision and upending decades of progress for reproductive rights.