Contraceptive Rights: Can They Be Taken Away?

Contraception is a fundamental right that has been upheld by policymakers and courts for decades. In 1965, the US Supreme Court established a right for married couples to use contraceptives, and in 1972, this right was extended to single people. However, in recent years, there have been growing attempts to restrict access to contraceptives, with some states passing laws or constitutional amendments to secure the right to contraception for their residents. The issue of contraceptive access has become increasingly politicized, with some lawmakers and activists seeking to limit or ban access to contraceptives, while others strive to protect and expand access. The introduction of the Right to Contraception Act in Congress aims to safeguard the right to contraception and prevent any future attempts to restrict access.

The Right to Contraception Act

The legislation would establish an individual's right to have access to all methods of contraception, including pills (prescription and over-the-counter), implants, devices, and sterilization. It would prohibit any local, state, or federal government entity from limiting or infringing on these rights by enacting laws that impede the provision of or access to contraceptives, related information, or services.

The bill's proponents argue that it is necessary to safeguard individuals' freedom to make decisions about their bodies, health, and lives without political interference. They emphasize the importance of contraception in sexual and reproductive health, as well as its role in treating medical conditions and reducing the risk of certain cancers. Additionally, the bill aims to address the impact of limited access to contraceptives, which can result in an increase in unintended pregnancies and negatively affect individuals' economic and social participation.

Contraception as a fundamental right

Contraception is widely recognised as a fundamental right and an essential component of healthcare. The ability to access contraceptives allows people to control when and whether to become pregnant and helps address many medical conditions. In the United States, the Supreme Court established a right for married couples to use contraceptives in 1965 (Griswold v. Connecticut) and expanded that right in 1972 to single people (Eisenstadt v. Baird).

Despite these landmark decisions, there is still uncertainty around people's ability to access certain contraceptive methods. Many people, for example, mistakenly believe that intrauterine devices (IUDs) and emergency contraceptives (EC) are abortifacients and can end a pregnancy. This confusion has been exacerbated by recent political developments, such as the 2022 Dobbs decision and statements by former President Donald Trump, who said that he believes the right to contraception should be up to the states. As a result of this uncertainty, a growing number of states have passed laws or constitutional amendments to secure the right to contraception for their residents.

The Right to Contraception Act, first introduced in Congress in July 2022, would establish individuals' right to have access to all methods of contraception and prohibit any local, state, or federal government entity from limiting or infringing on these rights. The bill has been reintroduced and backed by several senators and representatives, who argue that it is necessary to protect access to contraception and the ability of individuals to make decisions about their bodies and their futures. The bill also has the support of medical professionals, such as Dr. Raegan McDonald-Mosley, who has emphasised the importance of contraception for the well-being of patients, their families, and their communities.

Currently, eleven states and the District of Columbia have laws explicitly protecting the right to contraception: Colorado, Florida, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Four states—California, Michigan, Ohio, and Vermont—protect the right to contraception in their constitution under the broader scope of reproductive freedom. Vermont, for example, has a general right to reproductive autonomy in its constitution, as well as a law specifically naming the right to contraception and sterilization.

State laws restricting access to contraceptives

The US Supreme Court established a right for married couples to use contraceptives in 1965 and expanded that right in 1972 to single people. However, even with these constitutional protections, there is uncertainty around people's ability to access certain contraceptive methods, such as IUDs and emergency contraceptive pills, which are often confused with medication abortion. This confusion has led to attempts to restrict access to these methods, with some states passing laws or constitutional amendments to secure the right to contraception for their residents.

In 2021, at least four states attempted to restrict access to contraceptives by limiting public funding for these products and services. For example, Texas Republicans excluded Planned Parenthood from its public family planning program for low-income women, resulting in a significant drop in the use of contraceptives and an increase in unintended births, particularly among low-income women of colour. Similarly, Iowa stopped paying for Plan B for survivors of sexual assault through its Crime Victim Compensation Program. While these measures do not directly affect the legality of contraceptives, they do restrict access by making them less accessible and affordable for certain populations.

Some state legislators have introduced measures to protect the right to obtain contraceptives. Eleven states and the District of Columbia have laws explicitly protecting the right to contraception: Colorado, Florida, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Colorado's statute ensures that minors can consent to receiving contraceptive information or supplies from a healthcare provider. Four states—California, Michigan, Ohio, and Vermont—protect the right to contraception in their constitution under the broader scope of reproductive freedom.

Despite these protections, there are still concerns about the potential for state laws to interfere with access to contraceptives. Fetal Personhood Laws, which define personhood as starting at fertilization, could be used to limit access to contraceptives by considering them equivalent to abortion. Additionally, misinformation about contraceptives and how pregnancy is defined in state abortion bans may impact contraceptive access, as seen in the Kentucky gubernatorial race in 2023, where a Republican contender indicated support for prohibiting public funds for abortion, including certain contraceptive methods.

The impact of misinformation on contraceptive access

One of the primary sources of misinformation is the conflation of abortion and contraception in public discourse and media reporting. Anti-abortion groups have mislabelled emergency contraception and intrauterine devices (IUDs) as abortion-causing methods. This has led to a widespread misunderstanding of the distinction between contraception and abortion, with polls indicating that up to 73% of adults incorrectly believe that emergency contraception can end a pregnancy in its early stages. This confusion has been exacerbated by the lack of accurate information and low national literacy about the process of becoming pregnant.

The impact of this misinformation is far-reaching. It has influenced policy debates, legislative decisions, and public opinion, ultimately affecting access to contraceptives. For example, in 2020, Texas received permission to exclude emergency contraceptives from its Medicaid-funded family planning program, and in 2021, the Idaho legislature enacted a law prohibiting school-based clinics from dispensing emergency contraceptives, except in cases of rape. These measures contribute to restrictions on access to certain contraceptive methods, particularly for low-income individuals.

The Supreme Court's Dobbs decision in 2022, which allowed states to ban or regulate abortion, further contributed to the uncertainty around contraceptive access. Justice Thomas's concurring opinion raised the possibility that the right to obtain contraceptives could be limited, leading to concerns about the potential overturning of precedents like Griswold v. Connecticut, which recognised the right of married people to obtain contraceptives. This has prompted legislative bodies at the state and federal levels to debate and enact protections for contraception, with 13 states and the District of Columbia specifically protecting the right to contraception.

Overall, the impact of misinformation on contraceptive access has resulted in confusion, restricted access to certain contraceptive methods, and the potential erosion of established rights. Addressing misinformation and ensuring accurate information dissemination are crucial steps towards securing and improving contraceptive access for all.

The role of policymakers and courts in upholding contraceptive rights

In the United States, the right to contraception has been recognized as a fundamental component of healthcare, upheld by policymakers and courts for decades. The US Supreme Court first established the right for married couples to use contraceptives in 1965 through the landmark case Griswold v. Connecticut, which centred on a Connecticut law that banned contraception. The Court found that the use of birth control by married people fell within the constitutional right to privacy, protecting their decision-making regarding birth control.

However, prior to the Griswold decision, many states outlawed contraceptives, prohibiting healthcare professionals from prescribing or even discussing contraceptive methods with their patients. After Griswold, some states continued to restrict access for unmarried individuals, allowing only married women to obtain contraceptives. This led to further litigation, resulting in the High Court's Eisenstadt v. Baird decision in 1972, which extended the constitutional protections of Griswold to unmarried people.

Despite these landmark decisions, the right to contraception remains under threat. The Supreme Court's 2022 Dobbs v. Jackson Women's Health Organization decision, which overturned Roe v. Wade, has emboldened efforts to restrict contraceptive access. Justice Clarence Thomas explicitly questioned the Court's 1965 Griswold ruling, suggesting that the Court should reconsider and overturn its precedent. This has prompted some in Congress and state legislatures to introduce measures to protect the right to obtain contraceptives.

To address these challenges, policymakers must act to support bodily autonomy and uphold health equity. The Right to Contraception Act, first introduced in Congress in 2022, aims to establish individuals' rights to access all methods of contraception and prohibit any governmental entity from infringing on these rights. Additionally, policies such as the Title X national family planning program and the Affordable Care Act (ACA) help improve access to contraceptives by making them more affordable.

In conclusion, policymakers and courts play a crucial role in upholding contraceptive rights by ensuring that individuals have the legal protection and access to exercise their reproductive freedom. While challenges and threats to these rights persist, continued efforts are necessary to safeguard this fundamental aspect of healthcare and autonomy.

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