A year after Justice Clarence Thomas said the Supreme Court should reconsider whether the Constitution gives Americans the right to birth control, Democrats and reproductive rights advocates are laying the groundwork for state-by-state battles. on access to contraception, an issue they hope to change. against the Republicans in 2024.
The fairness argument in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade and the right to abortion, galvanized the reproductive rights movement. House Democrats, along with eight Republicans, quickly passed legislation that would have created a national right to contraception. Republicans blocked a companion bill in the Senate.
Now, reproductive rights advocates are pressing their case in the states. Even before Dobbs, some states had taken steps to protect the right to contraception, either by statute or constitutional amendment; 13 states and the District of Columbia currently have such protections, according to KFF, a health policy research organization.
This month, the movement won a major but little-noticed victory in Nevada, where the Democratic-controlled Legislature passed a bill, modeled on the defeated federal measure, that would guarantee the right to contraception. Gov. Joe Lombardo, a Republican, has not said whether he will sign it, and a spokeswoman said she could not comment on his views. Proponents of codifying such a right see Nevada as a test case.
“It will be up to the Republicans to choose whether they want to protect the right to contraception,” Sen. Edward J. Markey, a Massachusetts Democrat and a sponsor of the failed Senate bill, said in an interview. He called Dobbs’ decision “a foretaste of coming atrocities.”
On Wednesday, Mr. Markey and Rep. Kathy Manning, D-North Carolina, reintroduced legislation create a national right to contraception. With the House now controlled by Republicans and the Senate by Democrats well short of the 60 votes needed to break a filibuster, the legislation is most likely dead by the time it reaches Washington.
Surveys have consistently shown broad bipartisan support for access to contraception, and while Republicans may not be eager to enshrine the right to it in federal law, they also don’t want to ban it outright. Still, there is some opposition to birth control.
The Roman Catholic Church opposes any form of artificial birth control, arguing that some contraceptives “it can cause early miscarriages.” Some opponents of abortion claim that two common methods of preventing pregnancy, intrauterine devices and emergency contraception, also known as the morning-after pill and marketed as Plan B, are “abortifiables” that prevent a fertilized egg from implanting in a woman. the womb of a woman.
But American College of Obstetricians and Gynecologists says intrauterine devices work “primarily by preventing the fertilization of an egg by a sperm.” And the Food and Drug Administration said last year that Plan B does not prevent a fertilized egg from implanting in the uterus and cannot be considered an abortion pill.
Critics of codifying the right to contraception say such legislation amounts to a no-hassle solution, or is purely a political gesture meant to put Republicans in a bind and encourage voters to reject them at the polls.
“Most Republicans saw that as a political vote, not really a serious vote,” John Feehery, a Republican strategist, said of last year’s House vote on the bill. “In the Republican coalition, there is a small but vocal element that is against contraception, but the vast majority of Republicans have no interest in making contraception illegal.”
Since Dobbs’ decision, debates over birth control have also become increasingly linked to abortion. Some Republicans who voted against the House bill complained that it would have sent more money to Planned Parenthood, an organization that is a target of many in the party because it is a major provider of abortions. Rep. Cathy McMorris Rodgers, a Washington Republican, described the bill as a “Trojan horse for more abortions.”
Writing for the majority in the Dobbs case, Justice Samuel A. Alito Jr. emphasized that the ruling “concerns the constitutional right to abortion and no other rights.” but in a concurring opinionJustice Thomas said the Supreme Court should reconsider other rulings, including Griswold v. Connecticut, a 1965 decision that established the right of married couples to use contraception. He said the logic of the majority opinion in Dobbs undermined Griswold.
“For years, we have been asking elected officials across the country to pay more attention to the fusion of abortion and contraception,” said Clare Coleman, president and CEO of the National Association for Family Planning and Reproductive Health, which represents health providers. “We shouldn’t have to respond to ‘Why are we worried?’ ask more.”
Ms. Coleman and her allies in the movement say complacency is what costs American women their right to abortion. They also see what they see as troubling efforts to restrict access to birth control.
In 2021, Missouri Republicans tried to ban taxpayer funding for intrauterine devices and emergency contraception. Missouri is one of four states (the others are Arkansas, Mississippi and Texas) that have kicked Planned Parenthood, a major birth control provider, from its Medicaid programs.
At the same time, the federal family planning program known as Title X is being challenged in Texas, where a federal judge ruled at the end of last year that it violated the constitutional rights of parents by allowing clinics to provide birth control to teens without parental consent. If the ruling is upheld, it could threaten access to contraceptives for minors across the country.
So far, however, the Dobbs case has not generated the kind of widespread attacks on birth control that advocates feared. In fact, access to contraception has expanded in a handful of red states, according to the Guttmacher Institute, which tracks reproductive health measures.
In Indiana, Governor Eric Holcomb signed a law allowing pharmacists to prescribe birth control. In West Virginia, Governor Jim Justice signed a bill requiring insurance plans to cover 12-month supplies of birth control from pharmacies. In Arkansas, Governor Sarah Huckabee Sanders signed a law requiring Medicaid to cover intrauterine devices and other long-acting reversible contraceptives for women who have just given birth. They are all Republicans.
The push for laws declaring the right to contraception comes as the FDA is considering allowing birth control pills to be sold without a prescription for the first time. An agency advisory panel said last month that the benefits of over-the-counter contraceptives outweigh the risks. Anticipating possible action by the FDA, Senate Democrats recently reintroduced legislation that would require insurers to cover over-the-counter contraceptives.
But Sen. Catherine Cortez-Masto, a Nevada Democrat and a major sponsor of the bill, said she didn’t know whether the measure’s supporters could garner any Republican support in the current post-Dobbs climate. “We think we should,” she said, “but, you know, it’s a different, challenging time right now.”
In North Carolina, the Dobbs case and abortion politics doomed a bill to affirm the right to contraception, said state Sen. Lisa Grafstein, a Democrat who introduced the bill. Ms. Grafstein said in an interview that she had spoken to at least one Republican who was interested in becoming a cosponsor.
But that was before state lawmakers moved to ban most abortions after 12 weeks.
“Once the abortion debate got off the ground, there was no more discussion of these kinds of issues,” Ms. Grafstein said. “The tenor of things has really changed a lot in terms of whether a conversation like that would be possible right now.”
Even in Nevada, a state where voters codified abortion rights through a referendum more than three decades ago, in 1990, it was difficult for supporters of the bill to win Republican support. In the end, a handful of Republicans voted in favor of the measure. His main sponsor, Assemblywoman Selena Torres, a Democrat, said she hoped the governor would sign it.
“This was a very different issue from abortion,” Ms. Torres said. “But I do think that the Dobbs decision is ultimately what drives this conversation.”
Supporters of codifying the right to contraception hope Nevada will serve as a model for other states and also put pressure on Republicans in Congress. Americans for Contraception, an advocacy group that has orchestrated the state-by-state strategy, ran attack ads last year against Republicans who voted against the House bill.
The group says it has lined up Democratic state lawmakers in five more states — Arizona, Mississippi, Tennessee, Virginia and Wisconsin — to introduce bills next year to guarantee the right to contraception.
“Last year, 195 House Republicans tried to get away with opposing the right to contraception by voting against a simple bill,” said Dana Singiser, the group’s senior adviser. “Nevada demonstrates that some of your colleagues at the state level recognize that supporting the right to contraception is policy and a political no-brainer.”
In Washington, there’s a ready explanation why so many Republicans voted against the House bill: Susan B. Anthony Pro-Life America, an anti-abortion group, decided to include voting on its scorecard for lawmakers.
The organization ridiculed the measure as the “Planned Parenthood Payments Act” and said it would “trampling on conscience rights” in states that allow healthcare providers or pharmacists to refuse to provide birth control. The group claimed that the bill’s definition of contraceptives—“any drug, device, or biological product intended for use in the prevention of pregnancy”—was too broad and could be interpreted to include abortion pills.
“If you’re a Republican, you want to be seen as pro-life, and the Susan B. Anthony caucus helps define who is pro-life,” said Feehery, the Republican strategist, adding: “I think most Republicans would prefer to side with Susan B. Anthony than to side with Planned Parenthood.”