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After Justice Clarence Thomas cast doubt on the Supreme Court decision that established a right to contraception, reproductive rights advocates are pressing for new protections at the state level.
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.
The justice’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 currently have such protections, according to KFF, a health policy research organization.
This month, the movement scored an important but little-noticed victory in Nevada, where the Democratic-controlled Legislature passed a bill, inspired by the defeated federal measure, that would guarantee a right to contraception. Gov. Joe Lombardo, a Republican, has not said whether he will sign it, and a spokeswoman said she could not speak to his views. 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 J. Markey, Democrat of Massachusetts and the sponsor of the failed Senate bill, said in an interview. He called the Dobbs decision “a preview of coming atrocities.”
On Wednesday, Mr. Markey and Representative Kathy Manning, Democrat of North Carolina, reintroduced legislation to create a national right to contraception. With the House now controlled by Republicans and 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 while 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 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 intrauterine devices 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. Representative Cathy McMorris Rodgers, Republican of Washington, described the bill as a “Trojan horse for more abortions.”
Writing for the majority in the Dobbs case, Justice Samuel A. Alito Jr. stressed that the ruling “concerns the constitutional right to abortion and no other right.” But in a concurring opinion, Justice 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, the president and chief executive 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.”
Ms. 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 intrauterine devices 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.
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, Gov. Eric Holcomb signed legislation allowing pharmacists to prescribe birth control. In West Virginia, Gov. Jim Justice signed a bill requiring insurance plans to cover 12-month supplies of contraceptives from pharmacies. In Arkansas, Gov. Sarah Huckabee Sanders signed legislation requiring Medicaid to cover intrauterine devices and other long-acting reversible contraceptives for women who have just given birth. All are Republicans.
The push for laws declaring a right to contraception comes as the F.D.A. is considering allowing birth control pills to be sold over the counter for the first time. A panel of advisers to the agency said last month that the benefits of over-the-counter contraception outweighed the risks. In anticipation of possible action by the F.D.A., Senate Democrats recently reintroduced legislation that would require insurers to cover over-the-counter contraception.
But Senator Catherine Cortez-Masto, Democrat of Nevada and one of the bill’s chief sponsors, said she did not know if the measure’s backers could get any Republican support in the current post-Dobbs climate. “We think that we should,” she said, “but, you know, it’s a different and challenging time right now.”
In North Carolina, the Dobbs case and abortion politics doomed a bill to affirm a right to contraception, said State Senator Lisa Grafstein, a Democrat who introduced the measure. Ms. Grafstein said in an interview that she had spoken to at least one Republican who was interested in becoming a co-sponsor.
But that was before lawmakers in the state moved to ban most abortions after 12 weeks.
“Once the abortion debate took off, there wasn’t any more discussion of these kinds of issues,” Ms. Grafstein said. “The tenor of things has really changed a lot in terms of whether a conversation like that would even be possible at this point.”
Even in Nevada — a state where voters codified a right to abortion through a referendum more than three decades ago, in 1990 — it was tough for the bill’s backers to get Republican support. Ultimately, a handful of Republicans voted for the measure. Its chief sponsor, Assemblywoman Selena Torres, a Democrat, said she was hopeful that the governor would sign it.
“This was a very separate topic from abortion,” Ms. Torres said. “But I do think that the Dobbs decision is ultimately what drives this conversation.”
Supporters of codifying a right to contraception are hoping Nevada will serve as a model for other states and will also put pressure on Republicans in Congress. Americans for Contraception, an advocacy group that has orchestrated the state-by-state strategy, ran attack ads last year against Republicans who voted against the House bill.
The group says it has lined up Democratic state legislators in five more states — Arizona, Mississippi, Tennessee, Virginia and Wisconsin — to introduce bills next year to guarantee a right to contraception.
“Last year, 195 House Republicans tried to get away with opposing the right to contraception by voting against a straightforward bill,” said Dana Singiser, a senior adviser to the group. “Nevada demonstrates that some of their colleagues at the state level recognize that supporting the right to contraception is a policy and a political no-brainer.”
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 scorecard 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 Mr. Feehery, the Republican strategist, adding, “I think most Republicans would much rather be on the side of Susan B. Anthony than on the side of Planned Parenthood.”