Is access to birth control safe? Congress to vote on law to protect contraception

For the second time in two years, Congress is considering a bill that would protect access to contraception at the federal level

If passed, the Right to Contraception Act would codify the right of Americans to have access to birth control pills, patches and implants, condoms, intrauterine devices (IUDs) and sterilization procedures, including vasectomies. It wouldn’t eliminate religious or personal belief exemptions, which allow health care providers to refrain from prescribing contraceptives to patients and insurance companies to choose not to cover them. 

Why is a bill considered necessary? 

Since the Supreme Court overturned Roe v. Wade in 2022, there has been confusion about where certain contraception methods stand, and whether states can revoke access to some forms of birth control. Some conservative lawmakers have argued that IUDs and emergency birth control pills can be used to induce an abortion. Already, legislation has been discussed or proposed in Idaho, Missouri, Louisiana, Arkansas and Michigan aimed at restricting certain types of contraception, specifically IUDs.

An IUD is a device inserted into the bottom of the uterus that causes the mucus in the cervix to thicken, which makes it difficult for sperm to reach and fertilize an egg. It also thins the lining of the uterus, making it difficult for an egg to attach in the rare event it is fertilized. Emergency contraceptives prevent or delay ovulation, preventing fertilization, and do not elicit an abortion, the World Health Organization states

House Democrats introduced and passed the Right to Contraception Act in 2022, at a time when Democrat Nancy Pelosi was speaker of the House. But the Senate never held a vote on the bill, stalling action. 

House Democrats on Tuesday made moves to prevent this from happening again, this time in the House, by proposing a discharge petition. The petition, which would require support from at least some of the GOP House members to pass, would force House Speaker Rep. Mike Johnson, a Republican, to hold a vote on the matter. 

The legal right to contraception in the United States is currently protected by two landmark Supreme Court decisions similar to Roe v. Wade: Griswold v. Connecticut and Eisenstadt v. Baird. Legal decisions related to contraception are based on the outcome of these cases, a concept called jurisprudence. But the precedent set by these cases is open to interpretation, potentially allowing new court cases that would restrict contraception access to hold up in court –– and set new precedent that could favor restrictions. That is what happened to Roe v. Wade with the 2022 Dobbs v. Jackson Women’s Health Organization decision.

“This bill does not force people to prescribe contraception, it does not force people to take contraception,” said Dr. Dara Kass, an emergency medicine physician in New York and former regional director at the U.S. Department of Health and Human Services. “This bill guarantees that if someone wants to take contraception, they will be able to have access to contraception and that access cannot be revoked.”

Regarding a 2022 version of the bill, some Republican politicians, including Florida Rep. Kat Cammack, said the legislation is not necessary, calling it a fear-mongering technique led by the Democratic Party. 

However, Justice Clarence Thomas said in 2022 that the Supreme Court should revisit and overrule past landmark decisions, including Griswold v. Connecticut. 

“What concerns me about not having a law is there are very clear indicators that there are some folks including some Supreme Court justices that have shown an appetite to overturn the Griswold case in the same way they overturned Roe,” McGrath said.

What happens next 

If the Right to Contraception Act passes, which is extremely unlikely at this time, the bill would become a statute, or a written law, that would not leave what types of birth control are protected up to interpretation, said Kathy Hoake, director of the Eeastern Rregion of The Network for Public Health Law.

The act, S.4381, defines contraception as “any drug, device or biological product intended for use in the prevention of pregnancy, whether specifically intended to prevent pregnancy or for other health needs, that is approved, cleared, authorized, or licensed” under certain sections of the Federal Food, Drug, and Cosmetic Act or Public Health Service Act.

In the likely event the bill does not pass, “it brings attention to the issue,” said Hoake, who is also a professor of law at the University of Maryland Carey School of Law. 

Congress can also again propose a bill to protect contraception. For now, access to contraception –– outside of religious or personal belief exemptions –– is protected by the existing landmark Supreme Court cases. 

“This bill is really intended to enshrine existing protections we already have into federal law,” said Mindy McGrath, senior program director at the National Family Planning & Reproductive Health Association. “But the Griswold decision still stands for now.”

As of May 2024, 14 states, plus Washington D.C., also have legal protection regarding access to contraception. Grassroots organizations are also working to continue to expand access to birth control particularly in states with strict abortion bans. 

This week, as the Senate votes on the Right to Contraception Act, Jo Giles, executive director of Women’s Fund of Omaha, is installing the organization’s third sexual health vending machine in a restaurant in the city. 

The fund’s first two machines –– which offer emergency contraception for $8 and pregnancy tests for $3 –– have already been operating in the Nebraska AIDS Project and in a bar in the city’s popular Benson neighborhood. 

Nebraska Gov. Jim Pillen signed a state law last year that prohibits abortion after 12 weeks of pregnancy. 

“It’s scary to think about the efforts that are trying to limit access to products that people want to use and that are safe and that are FDA-regulated,” Giles said. “In the face of that, we are innovating to make sure that people have what they need when they need it.”

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