Advocates push for right to birth control

With federal impasse, state efforts underway

WASHINGTON — One year after Justice Clarence Thomas said the Supreme Court should reconsider whether the Constitution affords Americans a right to birth control, Democrats and reproductive-rights advocates are laying the groundwork for state-by-state battles over access to contraception — an issue they hope to turn against Republicans in 2024.

Thomas’s 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, joined by eight Republicans, promptly 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, by either statute or constitutional amendment; 13 states and the District of Columbia have such protections, according to KFF, a health policy research organization.

This month, the movement seemed on the cusp of victory in Nevada, where the Democraticcontrolled Legislature passed a bill, with support from a handful of Republicans — including the minority leader of the state Senate — that would guarantee a right to contraception. But on Friday, Governor Joe Lombardo, a Republican, quietly vetoed the measure. Proponents of codifying such a right see Nevada as a test case.

“It’s going to be up to Republicans to choose whether they want to protect the right to contraception,” Senator Edward Markey, sponsor of the failed Senate bill, said in an interview. He called the Dobbs decision “a preview of coming atrocities.”

On Wednesday, Markey and Representative Kathy Manning, a North Carolina Democrat, reintroduced legislation to create a national right to contraception. With the House now controlled by Republicans and with Senate Democrats well short of the 60 votes needed to break a filibuster, the legislation is most likely dead on arrival in Washington.

Polls have consistently shown broad bipartisan support for access to contraception, and although Republicans may not be eager to enshrine a right to it in federal law, neither do they generally want to ban it. Still, some opposition to birth control does exist.

The Roman Catholic Church opposes any form of artificial birth control, arguing that some contraceptives “can cause early abortions.” Some abortion foes claim that two common methods of preventing pregnancy — intrauterine devices (IUDs) and emergency contraception, also known as the morning-after pill and marketed as Plan B — are “abortifacients” that prevent a fertilized egg from implanting in a woman’s uterus.

But the American College of Obstetricians and Gynecologists says IUDs work “mainly by preventing fertilization of an egg by sperm.” And the Food and Drug Administration said last year that Plan B does not prevent a fertilized egg from implanting in the womb, and cannot be considered an abortion pill.

Critics of codifying a right to contraception say such legislation amounts to a solution without a problem — or is purely a political gesture meant to put Republicans in a difficult spot and spur voters into rejecting them at the ballot box.

“Most Republicans saw that as a political vote, not really a serious vote,” John Feehery, a Republican strategist, said of the vote on the House bill last year. “In the Republican coalition, there is a small but vocal element that is anti-contraception, but the vast majority of Republicans don’t have any interest in making contraception illegal.”

Since the Dobbs decision, debates over birth control have also become increasingly tied up with 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 for many in the party because it is a major provider of abortions.

Writing for the majority in the Dobbs case, Justice Samuel Alito stressed that the ruling “concerns the constitutional

In a concurring opinion to the Dobbs case, Justice Clarence 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.

right to abortion and no other right.” But in a concurring opinion, 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 asked elected officials around the country to pay more attention to the conflation of abortion and contraception,” said Clare Coleman, president and CEO of the National Family Planning & Reproductive Health Association, which represents health providers. “We shouldn’t have to answer the ‘Why are we worried?’ question anymore.”

In 2021, Republicans in Missouri tried to ban taxpayer funding for IUDs and emergency contraception. Missouri is one of four states — that have ejected Planned Parenthood, a major provider of birth control, from their 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 late last year that it violated parents’ constitutional rights by permitting clinics to provide birth control to teenagers without parental consent. If the ruling is upheld, it could threaten access to contraceptives for minors nationwide.

So far, though, the Dobbs case has not spawned the kind of widespread attacks on birth control that advocates feared. In fact, access to contraception has been expanded in a handful of red states, according to the Guttmacher Institute, which tracks reproductive health measures.

In Indiana, Governor Eric Holcomb signed legislation allowing pharmacists to prescribe birth control. In West Virginia, Governor Jim Justice signed a bill requiring insurance plans to cover 12-month supplies of contraceptives from pharmacies. In Arkansas, Governor Sarah Huckabee Sanders signed legislation requiring Medicaid to cover IUDs and other long-acting reversible contraceptives for women who have just given birth. All are Republicans.