A Right to Contraception? Congress Will Vote Today


Birth control methods including oral contraceptives, emergency contraception, a ring, and an IUD

Congress moves to establish a right to birth control. A new bill in the House of Representatives aims to protect access to contraception. The Right to Contraception Act declares that “a person has a statutory right…to obtain contraceptives and to engage in contraception, and a health care provider has a corresponding right to provide contraceptives, contraception, and information related to contraception.” The House is scheduled to vote on it today.

Like another new measure (the Respect for Marriage Act) aimed at codifying the legality of same-sex marriage, the Right to Contraception Act comes in the wake of the Supreme Court overturning Roe v. Wade and Justice Clarence Thomas suggesting the court should revisit opinions on same-sex relationships and birth control.

At present, it seems pretty unlikely that the Supreme Court would revisit Griswold v. Connecticut—the 1965 case in which it recognized a right to access birth control—and highly improbable that any state would attempt to ban contraception entirely. But it’s not inconceivable that states might try to prohibit certain types of birth control (like emergency contraception), restrict access for minors, say pharmacies don’t have to fill prescriptions, or things like that.

And if the Food and Drug Administration approves applications for over-the-counter birth control, some states may try to keep contraceptives prescription-only.

Which means the Right to Contraception Act may be a good idea, even if it feels a tad bit performative.

Reason‘s Scott Shackford wrote about the Respect for Marriage Act:

While I still believe it’s very unlikely that this current Supreme Court is interested in rethinking Obergefell, it’s nevertheless a good idea for lawmakers to affirmatively pass legislation to confirm same-sex marriage recognition. If the public wants same-sex marriage to be the law of the land, and polls indicate that’s genuinely now what most people desire, it’s supposed to be lawmakers, not the Supreme Court, who decide what the contours of it should be.

This probably holds true for the Right to Contraception Act as well.

And the bill as introduced seems to do a good job of keeping its mission tight—avoiding common Democratic tendencies like conflating a right to access something with a right to have it funded by the government or covered by health insurance.

In fact, the bill explicitly states that its provisions “shall not be construed as requiring the provision of specific benefits” under “group health plans or group or individual health insurance coverage or coverage under a Federal health care program.”

What it would do is say that authorities can’t impede people’s right to contraception via “any limitation or requirement that…expressly, effectively, implicitly, or as implemented singles out the provision of contraceptives, contraception, or contraception-related information; health care providers who provide contraceptives, contraception, or contraception-related information; or facilities in which contraceptives, contraception, or contraception-related information is provided; and (2) impedes access to contraceptives, contraception, or contraception-related information.”

To enforce the law, it would authorize both the federal government and individuals to bring civil lawsuits “against any State that violates, or against any government official…that implements or enforces a limitation or requirement” impeding birth control access.

If the law passes, it will be interesting what is considered an impediment. Currently, only a few states allow birth control pills to be prescribed by a pharmacist and obtained on the spot; many require a visit to a doctor on an annual basis. Would such rules imperishably impede access?

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Public opinion about the Supreme Court has shifted dramatically since last year. In a new poll from Marquette Law School, just 38 percent of respondents say they approve of the current Court—down from 60 percent last year. This year’s poll was taken between July 5–12 and involved 1,003 adults. “The Marquette poll, like others released since the decision came down, finds that a broad majority of Americans oppose the decision to overturn Roe, 64% vs. 36% who favor it, a divide that has not shifted much in the wake of the ruling,” notes CNN.

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