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 Americans’ right to access birth control pills, patches and implants, condoms, intrauterine devices (IUDs), and sterilization procedures, including vasectomies. It would not eliminate exemptions based on religious or personal beliefs, 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 contraceptive methods stand and whether states can revoke access to certain forms of contraception. Some conservative lawmakers have argued that IUDs and emergency pills can be used to induce an abortion. Legislation has already been discussed or proposed in Idaho, Missouri, Louisiana, Arkansas and Michigan aimed at restricting certain types of contraception, especially IUDs.
An IUD is a device that is inserted into the bottom of the uterus and causes the mucus in the cervix to thicken, making 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 that it is fertilized. Emergency contraceptives prevent or delay ovulation, prevent fertilization and do not induce abortion, according to the World Health Organization.
House Democrats introduced and passed the Right to Contraception Act in 2022, at a time when Democrat Nancy Pelosi was Speaker of the House of Representatives. But the Senate never voted on the bill, delaying action.
House Democrats took steps Tuesday to prevent this from happening again, this time in the House of Representatives, by filing a petition for discharge. The petition, which would require the support of at least some Republican House members to pass, would force House Speaker Mike Johnson, a Republican, to vote on the issue.
The legal right to contraception in the United States is currently protected by two major Supreme Court decisions, similar to Roe v. Wade: Griswold v. Connecticut and Eisenstadt v. Baird. Legal decisions regarding contraception are based on the outcome of these cases, a concept called case law. But the precedent set by these cases is open to interpretation, potentially allowing new lawsuits that would restrict access to contraception to hold up in court — and setting a new precedent that could favor restrictions. That’s what happened with Roe v. Wade with the 2022 Dobbs v. Jackson Women’s Health Organization decision.
“This bill doesn’t force people to prescribe contraception, it doesn’t force people to use contraception,” said Dr. Dara Kass, an emergency room physician in New York and former regional director of the U.S. Department of Health and Human Services. “This bill ensures that if someone wants to use contraception, they can have access to contraception and that access cannot be withdrawn.”
Regarding a 2022 version of the bill, some Republican politicians, including Florida Rep. Kat Cammack, that the legislation is unnecessary, calling it a fear-mongering technique led by the Democratic Party.
However, Justice Clarence Thomas said in 2022 that the Supreme Court should review and overrule past landmark decisions, including Griswold v. Connecticut.
“What concerns me about the fact that there is no law is that there is very clear evidence that there are people, including some Supreme Court justices, who have shown a willingness to overturn the Griswold case in the same way they Overturned Roe,” said Mindy McGrath, senior programmer. director at the National Family Planning & Reproductive Health Association.
What happens now
If the Right to Contraception Act passes, which is extremely unlikely at this point, the bill would become a statute, or written law, that does not leave up to interpretation which forms of contraception are protected, said Kathi Hoake, executive director of the Eastern Region of the Public Health Law Network.
The law, S.4381, defines contraception as “any drug, device, or biological product intended for use in the prevention of pregnancy, whether specifically for the prevention of pregnancy or for other health needs, that is approved, approved, authorized, or licensed” under certain sections of the Federal Food, Drug, and Cosmetic Act or Public Health Service Act.
In the likely event that the bill doesn’t pass, “it brings attention to the issue,” said Hoake, who is also a law professor at the University of Maryland Carey School of Law.
Congress could also reintroduce a bill to protect contraception. For now, access to contraception — outside of exceptions based on religious or personal beliefs — is protected by existing landmark Supreme Court cases.
“This bill is really intended to enshrine in federal law the existing protections that we already have,” McGrath said. “But the Griswold decision still applies for the time being.”
As of May 2024, fourteen states, plus Washington DC, also have legal protections regarding access to contraception. Grassroots organizations are also working to further expand access to contraception, especially in states with strict abortion bans.
This week, as the Senate votes on the contraceptive right bill, Jo Giles, executive director of the Women’s Fund of Omaha, is installing the organization’s third sexual health vending machine at 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 in use at the Nebraska AIDS Project and at a bar in the city’s popular Benson neighborhood.
Nebraska Governor Jim Pillen signed a state law last year banning 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, that are safe and that are regulated by the FDA,” Giles said. “In light of that, we are innovating to ensure people have what they need, when they need it.”
This article was originally published on NBCNews.com
