Still wavering from the Supreme Court ruling that Roe v. Wade overturned, proponents of reproductive rights fear that an assault on access to birth control could be the next.
When the Supreme Court made its final decision in Dobbs v. Jackson Women’s Health Organization, Judge Clarence Thomas wrote in a consensus that the court Griswold v. Connecticut, the 1965 landmark decision that gave married couples the right to use contraception, needs to be reconsidered.
While standing alone in that consensus, experts believe other supporters may still be lurking in court.
“I think there are probably five voices in favor of restricting contraception in some way,” said Priscilla Smith, director of the Reproductive Justice Study Program at Yale Law School. “What it really depends on is the will of the states to try to ban contraception outright.”
And some conservative state legislators have already said publicly that they might go for contraception. Idaho State Representative Brent Crane, chairman of the Home State Affairs Committee, alluded to holding a hearing on to ban emergency contraception after the Supreme Court ruling leaked earlier this year.
There is no basis for the idea that contraceptives cause abortions. IUDs, monthly birth control and emergency contraception, also called the morning-after pill, all work by preventing either ovulation or conception. It is shown that no one is able to terminate an existing pregnancy, which only begins after a fertilized egg implants in the uterus.
But that has not stopped policymakers from trying to confuse the facts, especially when it comes to emergency precautionary measures.
The six-week abortion ban that Texas adopted in 2021 incorrectly defined pregnancy as the beginning of conception. And based on political pressure on the FDA when it first approved Plan B for over-the-counter sales, the agency requires Plan B to carry a label claiming that the drug can prevent the implantation of a fertilized egg – despite a defect to evidence that it does.
In the week since the Supreme Court abortion ruling, confusion has already spread. Just days after the decision, a major hospital system in Missouri stopped offering Plan B, citing a perceived lack of clarity about the state’s extensive new abortion ban. The hospital network, Saint Luke’s Health System, withdrawn after Missouri Attorney General Eric Schmitt (R) explained that the ban does not cover emergency contraception.
“I could see them going to emergency contraception to test the water, and then they would go to contraception.”
– Priscilla Smith, Program for the Study of Reproductive Justice at Yale Law School
Because the FDA has the sole authority to approve medicines and medical devices, it is not clear that states even have the authority to ban approved birth control or emergency contraception. New bans will also be extremely unpopular. Contraception and emergency contraception are widespread, frequently used, and almost 90% of sexually active Americans use contraceptive methods at any given time.
But with Dobbs eradicating the abortion rights of millions of people, and a growing number of Republicans falsely demanding that some contraceptives cause abortions, proponents of reproductive freedom are understandably scared.
“It’s totally on the agenda,” Smith said. “I could see them going to emergency contraception to test the water, and then they would go to contraception.”
In just the past year, three states have attempted to limit emergency contraception by equating it with abortion.
In Idaho, lawmakers have succeeded in banning health clinics in public schools (including university campuses) from handing out emergency contraception under a bill banning “abortion-related activities.”
In Missouri, Republicans in State Senate voted to ban Medicaid of the financing of emergency contraception and IUDs, which demanded the sponsor of the amendment “kills a human life.”
In Arizona, where an existing law protects health care entities that do not help “cause the death of any individual,” the state Senate voted to add emergency contraception as something that causes death. (The Arizona and Missouri measures eventually failed.)
These efforts have laid the groundwork for a broader ban by trying to blur the differences between contraception and abortion, says Michele Goodwin, founding director of the Center for Biotechnology and Global Health Policy at the University of California, Irvine.
“The rhetoric is being attacked in a way that is so deliberate,” she said.
Members of Congress such as Reps. Marjorie Taylor Greene (R-Ga.) And Matt Rosendale (R-Mont.) Are on the record falsely claims that emergency contraception causes abortion. (It works by preventing ovulation and fertilization.) Sen. Marsha Blackburn of Tennessee defeated Griswold v. Called Connecticut “constitutionally unfounded,” while Blake Masters, who is running for the U.S. Senate in Arizona, said he would only vote for judicial nominees who agree that Griswold was “wrongly decided.”
“Roe v. Wade was a horrible decision,” reads his campaign website. “But the fight does not stop there.”
Smith and other legal experts believe the Supreme Court is ready to accept these falsehoods about contraception.
Judge Samuel Alito has already done so in Burwell v. Hobby Lobby, the 2014 decision that allowed some corporate health care plans to be exempted from Obamacare’s requirement to cover contraception. Hobby Lobby, the craft store giant, challenged the mandate on the grounds that the company owners, the Green family, believe contraceptives cause abortion.
Alito, who wrote the majority decision in favor of Hobby Lobby, acknowledged that their beliefs contradicted the prevailing science. But he did not bother to find any balance in the final verdict.
“The ease with which the majority of the court accepted that contraceptives are abortion drugs was striking,” said Wendy Parmet, director of the Northeastern University’s program on health policy and law.
“We have a court majority that is zealous against abortion and equally zealously anti-science. This is an angry court. These are judges who have been fighting all their lives and waiting for this moment. “
– Wendy Parmet, Northeastern University’s program on health policy and law
Judge Brett Kavanaugh later that year issued an opinion with almost identical logic on contraception. In a dispute he wrote as a judge in the U.S. Court of Appeals for the DC Circuit, he joined an anti-abortion group challenging the Obamacare mandate on the grounds that the group believed that some forms of contraception caused abortion.
“We have a court majority that is zealously against abortion and equally zealously anti-science,” Parmet said. “This is an angry court. These are judges who have been fighting and waiting for this moment all their lives. If this issue comes up in this current Supreme Court, I think you have to accept that they are favorably inclined to accept broader prohibitions. ”
The twisted logic in Dobbs jeopardizes the right to birth control because the court has argued that the only rights protected by the Constitution are rights that are “deeply rooted in the nation’s history and traditions”.
Although people have been using contraceptives for centuries, a myriad of states around the turn of the century banned contraceptives. The right of access to birth control is only a few decades old: Griswold was decided in 1965 and applies only to married couples. The Supreme Court case that recognized each person’s right to use birth control is only one year older than Roe v. Wade.
“The world goes back to the 1860s. It is crazy to say that freedom in this country is based on the traditions of this country, which are based on oppression – of people of color, black people in particular, and women. ” Smith said.
Although no state has tried to ban contraception completely in recent years, Republican-led states have increasingly found creative ways to restrict people’s access to it, said Elisabeth Nash, chief policy officer for state issues at the Guttmacher Institute.
Eighteen states have some form of ban on the use of public funds for family planning. Four kicked Planned Parenthood out of their Medicaid network – leaving millions of low-income patients without any local access to birth control. A dozen states allow health care workers, from doctors to pharmacists refuses to supply or supplement contraceptive prescriptions.
Texas – what built his own family planning program from scratch in order to defund Planned Parenthood – does not cover emergency contraception for low-income patients and requires that someone under the age of 18 have a parent’s or guardian’s permission to obtain a birth control prescription. And the state’s family planning program is so full of holes that tens of thousands of women are estimated to have lost reliable access to contraception.
Nash fears the Dobbs decision will encourage states to make it even more difficult to gain access to contraception. They could target access to youth or move state’s family planning dollars away from contraception.
“If we take lessons and clues from the past, think about what the potential was for discrimination under Jim Crow, which was allowed to continue, even if it was completely contrary to the Constitution and its supposed values,” Goodwin said.
“What can come next?” she said. “It can be unthinkable.”