Graeme Sloan/Sipa USA via AP Images
A person holds a sign outside the U.S. Capitol before a Senate vote on legislation that would guarantee a right to contraception, June 5, 2024, in Washington.
At their Senate confirmation hearings, Supreme Court Justices John Roberts, Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch all said that Roe v. Wade was a legitimate precedent.
Except, whoops, it turns out all these people were lying, at least when testifying to Congress about the common-law principle of stare decisis. Under our system, justices aren’t supposed to throw out precedent without a good reason, but as soon as they had the votes, they threw Roe in the garbage without a second thought. Only Clarence Thomas (who’d refused in his confirmation hearing to answer whether he thought Roe was valid precedent) was even slightly honest about his intentions.
This matters because it’s an example of how Republicans smuggle their horrendously unpopular policies past the public. While activists wave gruesome pictures at rallies, harass people at abortion clinics, and occasionally murder doctors, the public faces of the Grand Old Party blithely admonish everyone to “Calm down. Roe v. Wade isn’t going anywhere.” Then, when the courts are sufficiently stacked with partisan hacks, they spring the trap.
Today, the same thing is happening with contraception. Unhinged conservative fanatics are building up momentum to ban the most common types of contraception, principally by lying that they actually induce abortions somehow, and they are finding success at the state and local level. As Lauren Weber reports at The Washington Post, Republicans in both Missouri and Louisiana recently blocked pro-contraception bills by lying that they cause abortions. A right-wing Idaho think tank is urging the state to ban the morning-after pill and IUDs by claiming, falsely, that they are “abortifacients.”
Iowa’s Republican government has already ended subsidies for emergency contraception for victims of sexual assault. And among the victories of the so-called Alliance Defending Freedom (ADF)—the most important right-wing legal group, which has won 15 Supreme Court cases since 2011—is Burwell v. Hobby Lobby, which ended the requirement for employer-based insurance to cover contraception.
Even as these events transpire, sundry GOP elites are nonetheless insisting that nuh-uh, we definitely aren’t coming for your birth control pills, pinky swear. A National Republican Senatorial Committee memo recently urged GOP senators to express their support for contraception. Axios reports the memo “tells its candidates to highlight their support for a bill introduced by Sen. Joni Ernst (R-Iowa) that aims to increase the availability of birth control options.” Sen. Katie Britt (R-AL) put out a statement claiming, “There is no threat to access to contraception.”
It is vanishingly unlikely that Senate Republicans would actually pass a bill to ban contraception—they’ll get the courts to do it for them.
But then on Wednesday, those same Senate Republicans filibustered a pro-contraception bill. This contradictory stance naturally required some excuses. “It’s a phony vote because contraception to my knowledge is not illegal. It’s not unavailable,” said Sen. John Cornyn (R-TX). Britt lobbed overheated claims that the bill would require schools to hand out condoms to schoolchildren.
Despite this filibuster, it is vanishingly unlikely that Senate Republicans would actually pass a bill to ban contraception, because that’s not how they do things. They’ll get the courts to do it for them.
In his concurrence in the Dobbs decision, Clarence Thomas took aim at Griswold v. Connecticut, which legalized contraceptive use among married couples. Since Roe relied on substantive due process, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote, referring to decisions that legalized gay sex and marriage. ADF leader Alan Sears told The New Yorker that outright banning the pill was a reach goal. “It may be that the day will come when people say the birth-control pill was a mistake,” he said.
This is how the modern conservative policy apparatus functions. Crazed extremists decide on a terrible goal, legal spear-carriers recruit candidates for (often fraudulent) lawsuits, momentum builds, and eventually partisan hacks on the bench give their rubber stamp of approval. What was deranged lunacy five years ago is settled law today. Thomas’s opinion was a signal to ADF to gear up this process again.
From the outside, it might seem completely nuts for Republicans to start inching toward a policy goal that is something like 90 points underwater. After all, polls show even Republicans give birth control pills and IUDs 92 and 93 percent support, respectively.
But we’ve been here before. In the 19th century, as historian Linda Gordon explains in her book The Moral Property of Women: A History of Birth Control Politics in America, patriarchal politics and Victorian morals of prudishness were combined as part of an all-out attack on birth control (which has been common since ancient times). Women were portrayed as dim-witted, delicate flowers incapable of making their own decisions, and any sex aside from procreation was thought to be impure and sinful. This resulted in a steady rollback of birth control (and abortion) access, culminating in a federal ban in 1873.
The same burning desire to control the sexuality of women—and punish those who refuse to abide by conservative sexual mores with unwanted children—fuels both the crusade against abortion and the developing attack on contraception today. It goes without saying that the largely male elite who push these policies routinely and gleefully violate them (witness Donald Trump’s hush-money bribe to Stormy Daniels). As Gordon notes, that was true in the 19th century as well, as evidenced by a contemporaneous prostitution industry of immense proportions.
Today’s anti-abortion, anti-contraception movement comes complete with a heavy dose of seething misogyny from the “incel” community (and the “men’s rights” one, to a lesser extent), whose members loathe women and want to hurt them in any way possible. There is likely also some influence from the burgeoning “great replacement” conspiracy theory, which posits that international Jewry is somehow working behind the scenes to replace white Americans with nonwhite immigrants. This is racist insanity, but America actually is getting browner, and one of the main drivers is a rapidly falling birth rate among American whites. One way to counteract that in theory (though likely not in practice) would be to ban contraception.
At any rate, the threats to contraception may not be borne out, particularly if the slightly more sober-minded conservative justices think that it will damage the Republican Party’s electoral prospects too much. But if they think they can get away with it, the GOP absolutely will take your birth control away in a heartbeat.
