Why contraception remains a battlefront in the war on reproductive rights

Since the U.S. Supreme Court overturned Roe v. Wade nearly two years ago, there has been a chorus of people warning that it wouldn’t end with abortions — that the right to access contraception would be eroded next. Earlier this month, U.S. legislators had a chance to codify access to birth control by passing the Right to Contraception Act. Specifically, it would have guaranteed the right of an individual "to obtain contraceptives and to voluntarily engage in contraception."

The legislation also would have protected the right of licensed health care providers to provide contraceptives, services and information related to contraception." It also would have prohibited any laws that impede access to birth control. All but two Senate Republicans voted against it. 

The possibility of restricting access to birth control didn’t appear out of nowhere. In Justice Clarence Thomas' concurring opinion on the case of Dobbs v. Jackson Women's Health Organization, which overturned Roe, he opined that the Supreme Court should revisit precedents that codified same-sex marriage, same-sex relationships and the right to contraception.

"In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell," Thomas wrote in the opinion. "Because any substantive due process decision is 'demonstrably erroneous' … we have a duty to 'correct the error' established in those precedents."

The Griswold vs. Connecticut case cited by Thomas was decided in 1965, when the Supreme Court said married couples have the right to obtain contraceptives. This ruling determined that a state's ban on the use of contraceptives violated the right to marital privacy. Despite the ruling, unmarried women still didn't have the constitutional right to obtain contraceptives until the Supreme Court's 1972 decision in Eisenstadt v. Baird. In 1965, 26 states prohibited birth control for unmarried women. Griswold vs. Connecticut paved the way for legal contraception in the 1970s; overturning it could have an impact on access to birth control nationwide.

As multiple legal experts told Salon nearly a year ago, since the fall of Roe, Griswold has been at risk. Now that Republicans have publicly unsupported it by failing to pass the Right to Contraception Act, is restricting access likely to happen sooner? 

Mini Timmaraju, president and CEO of Reproductive Freedom For All, told Salon that in the course of her 20-year career, she’s seen access to birth control always be at stake in some way. Right now, in the post-Roe landscape, what’s concerning to Timmaraju is the anti-abortion movement’s attempt to falsely conflate birth control as an abortifacient.

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“As long as they believe that life begins at conception — and they're using that as a public policy anchor for so much of this — they can't overcome the attacks on birth control,” Timmaraju said. “They really have to look at what the majority of physicians and scientists in this country believe and are clear on which is preventing implantation is not abortion, it’s not rooted in science.” 

Timmaraju added, before the Supreme Court ruled to uphold access to mifepristone, she was looking out for the court to rule on two major abortion-related cases, which could signal where the highest court is at with Griswold. The first, FDA v. Alliance for Hippocratic Medicine, could restrict access to mifepristone nationwide. The second, is looking at the language of the Emergency Medical Treatment and Labor Act (EMTALA) and determining if it overrides Idaho’s strict abortion laws.

“If they invoke or talk about in the language, or in any of the concurrences, Comstock, again, or Griswold, it’s more of a signal,” she said. “We're concerned about any abortion or reproductive rights case going forward, and we have two right now.”

Indeed, during oral arguments in March Supreme Court Justices Samuel Alito and Clarence Thomas both brought up the Comstock Act. In questioning, Thomas said to a lawyer for Danco Laboratories, the manufacturer of mifepristone, that the Comstock Act is "fairly broad, and it specifically covers drugs such as yours." Alito said the Comstock Act is a "prominent provision" and not "some obscure subsection of complicated obscure law."

Seema Mohapatra, a health law and bioethics expert at Southern Methodist University, told Salon that just how people ignored the risk of Roe v. Wade being overturned, the same could be said for now with Griswold. 

“I think from Dobbs, it's very obvious that contraception is at risk,” she said. “We already have strong conscience objections that pharmacists can have in many states.” 

Indeed, some states already have restrictions against emergency contraception like Plan B. And in 12 states, laws allow some health care providers to refuse to provide services related to contraception, according to the Guttmacher Institute.

Madison Roberts, a lobbyist for the Reproductive Freedom Project at the ACLU, told Salon overturning Roe v. Wade was never the “end goal for extremists.”

“In this modern era, we've seen attacks on reproductive freedoms across an array of reproductive health care issues, including attacks on birth control and extremist politicians have repeatedly threatened access to birth control, both in their words and in their actions,” Roberts said, noting the defunding of Title X, which was set up in 1970 to help low-income women who don't qualify for Medicaid obtain low-cost birth control (but notably not abortion.) 

Various attacks on birth control are “connected,” Roberts said, contributing to what’s at stake right now. 

“We don't have to read between the lines here to think about what the state of play is for attacks on reproductive freedom or on contraception.”

“The fact that a bill needs to be introduced to codify and safeguard the right to birth control, nearly 60 years after Griswold, just shows how extreme this agenda is,” Roberts said. “Voting yes on this bill should have been a no brainer.”