A year after Dobbs, advocates push in the states for a right to birth control
By Sheryl Gay Stolberg
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’ 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 Democratic-controlled Legislature passed a bill, with support from a handful of Republicans that would have guaranteed a right to contraception. But on Friday, Gov. Joe Lombardo, a Republican, quietly vetoed the measure. Proponents of codifying such a right saw Nevada as a test case.
“It’s going to be up to Republicans to choose whether they want to protect the right to contraception,” Sen. Edward Markey, D-Mass., sponsor of the failed Senate bill, said in an interview before the governor’s veto. Markey called the Dobbs decision “a preview of coming atrocities.”
Last Wednesday, Markey and Rep. Kathy Manning, D-N.C., 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. Rep. Cathy McMorris Rodgers, R-Wash., described the bill as a “Trojan horse for more abortions.”
Writing for the majority in the Dobbs case, Justice Samuel Alito stressed that the ruling “concerns the constitutional 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.”
Coleman and her allies in the movement say that complacency is what cost American women the right to abortion. They also see what they regard as worrisome efforts to restrict access to birth control.
In 2021, Republicans in Missouri tried to ban taxpayer funding for IUDs and emergency contraception. Missouri is one of four states — the others are Arkansas, Mississippi and Texas — that have ejected Planned Parenthood, a major provider of birth control, from their Medicaid programs.
In Washington, there is a ready explanation for why so many Republicans voted against the House bill: Susan B. Anthony Pro-Life America, an anti-abortion group, decided to include the vote in its score card for lawmakers.
The organization derided the measure as the “Payouts for Planned Parenthood Act” and said it would “trample conscience rights” in states that allow health providers or pharmacists to refuse to provide birth control. The group asserted that the bill’s definition of contraceptives — “any drug, device or biological product intended for use in the prevention of pregnancy” — was overly broad and could be construed to include abortion pills.
“If you’re a Republican, you want to be seen as pro-life, and the Susan B. Anthony group, they help define who’s pro-life,” said Feehery, adding, “I think most Republicans would much rather be on the side of Susan B. Anthony than on the side of Planned Parenthood.”