Bryan Olin Dozier/NurPhoto via AP
Rep. Kathy Manning (D-NC) speaks at a press conference outside the U.S. Capitol in Washington, June 14, 2023, announcing the introduction of the Right to Contraception Act.
By the end of March, Americans will be able to walk into drugstores, supermarkets, and other retailers that carry contraceptive products and purchase the birth control pill known as Opill without a prescription. The Food and Drug Administration’s green light for the brand-name drug containing the hormone norgestrel means new conveniences that release people from doctors’ visits and prescription refill calendars. But the debut of over-the-counter birth control pills raises new fears: If abortion and in vitro fertilization are already under attack, can an all-out war on birth control be far behind?
In the two years since the Supreme Court’s Dobbs decision, Ohio, Kansas, and Kentucky voters have tossed out proposals to further restrict abortion. Vermont, California, and Michigan voters added constitutional protections for abortion. Alabama Supreme Court justices tethered in vitro fertilization to a “theologically based view of the sanctity of life” (expanding on Dobbs’s reliance on medieval and 17th-century English jurists), and the impacts have reverberated far beyond the Deep South.
Birth control has operated uneasily alongside this culture war. But specific contraception rights only exist in 13 states. New state proposals bear watching. Last week, the Virginia General Assembly passed legislation that would protect the right to obtain and use contraception, and also allows the attorney general and private individuals to pursue civil actions against any law, regulation, or policy that violates this new plan. The House of Delegates saw some Republicans join Democrats to pass the bill. The Senate, however, where Democrats have a two-seat majority, hewed to party lines. A second bill that would require health insurance companies to cover the cost of contraceptives and related devices passed by healthier bipartisan margins.
Both bills now sit on Republican Gov. Glenn Youngkin’s desk. He has 30 days after the end of the session on March 9 to sign or veto the contraception access bill, but he must act on the health insurance coverage bill by 11:59 p.m. on March 8. Youngkin’s decision may tell Americans quite a bit about how prominent, ambitious Republicans plan to proceed on contraception.
Some states are about to unleash more chaos. An Oklahoma Republican has proposed a ban on birth control that is not provided by a doctor. The original target is emergency contraception options like Plan B, but that raises questions about the new class of birth control pills. In Tennessee, a bill that would have clarified that the state’s current abortion regulations do not encompass IVF or contraceptives never made it out of a House committee. Democrats in the archconservative Louisiana legislature have proposed protections for access to contraceptives and emergency contraceptives, but they haven’t advanced in the majority-Republican chambers.
In fueling the Dobbs backlash, the GOP’s crusade has had another unintended consequence: persuading many people to take permanent control of their own fertility—by ending it.
In Congress, Republican overstepping on reproductive rights hasn’t slacked off, but the House and Senate continue to send some contradictory messages. In 2022, House Democrats passed the Right to Contraceptive Act in the House (eight Republicans voted for the bill), only to have the Senate block the measure. Sen. Cindy Hyde-Smith (R-MS) also blocked an attempt by Sen. Tammy Duckworth (D-IL) to carve out protections for IVF by unanimous consent, all after some other Senate Republicans lined up to support IVF.
Strident House Republicans proclaim fierce adherence to religious precepts and talk about life beginning at conception, but others like Sen. Rand Paul (R-KY) have proposed legislation that chisels out exceptions for IVF and birth control. Although a group of Republican women House members also introduced a bill to preserve access to oral contraceptives, this attempt to deliver some clarity on birth control only got tangled up with the Republicans’ à la carte approach to reproductive rights: supporting IVF and birth control pills on the one hand, while opposing abortion and hedging on a nationwide ban (see entries under states’ rights) on the other.
This retrograde state of affairs comes courtesy of Justice Clarence Thomas. With Roe out of the way, he declared that cases which rest on substantive due process, the constitutional principle that protects individuals from government intrusions under the 14th and 15th Amendments, should be the next to fall. Substantive due process undergirds Griswold v. Connecticut, the 1965 decision that legalized contraception by extending the right to privacy to married couples, and the 1972 decision Eisenstadt v. Baird, which authorized contraceptives for single people. It also undergirded the high court’s same-sex marriage decision, and Congress responded to that by passing a statutory marriage protection. But nothing similar has been done on contraception.
Reanimating birth control restrictions would hurtle the U.S. back 150 years, to a time when Civil War veteran Anthony Comstock embarked on a personal crusade to abolish sex work and shut down contraception sales in New York. Comstock thought that contraceptives contributed to the behaviors he considered licentious. He claimed thousands of arrests.
In 1872, the head of the YMCA Committee for the Suppression of Vice headed off to Washington to extend his New York successes to the rest of the country. Passed the following year, the Comstock Act criminalized the mailing of articles considered “very obscene, lewd, lascivious, indecent, filthy, or vile” as well as “Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.”
The law’s application has changed and diminished over time. However, after the Supreme Court declared Roe unconstitutional, anti-abortion proponents reanimated the law by claiming that it should prohibit mailing of mifepristone, a drug used in medication abortions, which require a prescription from certified health care providers or pharmacies. The Justice Department has said that the Comstock Act does not apply. But that finding has not stemmed the controversies, and the Supreme Court will rule on access to mifepristone during its current term. Looming in the background, advisers to Donald Trump have said that they want to use the Comstock Act to ban the shipment of medication abortion pills.
In fueling the Dobbs backlash, the GOP’s crusade has had another unintended consequence: persuading many people to take permanent control of their own fertility—by ending it. NPR’s Kansas City affiliate reported that a 2023 Kaiser Family Foundation survey of 500 gynecologists found that 43 percent of respondents saw increases in sterilizations. Three Ohio university health care systems also had a marked increase in tubal sterilizations.
Similarly, a 2023 study published in International Journal for Impotence Research found that younger males and childless males have been proactive in not only obtaining vasectomy consultations but following through to complete the procedure. The researchers concluded, “The immediacy with which this change was seen indicates that the Post-Dobbs generation has already been significantly affected by the legal climate and the population-based consequences of this decision will continue to be seen in multiple ways for decades to come.”
Republicans have spent the early post-Dobbs era trying to stamp out the embers from the reproductive rights conflagration that they’ve stoked. Access to over-the-counter birth control pills and opening a new front in the battle over the right to contraception promises to reveal how much credence the party has in its race to turn back time, and whether American voters believe that they’ll move ahead with more restrictions this time around.
