One year after Justice Clarence Thomas said the Supreme Court should reconsider whether the Constitution affords Americans a right to birth control, Democrats and reproductive rights advocates are laying the groundwork for state-by-state battles over access to contraception \u2014 an issue they hope to turn against Republicans in 2024.<\/p>\n
The justice\u2019s argument in Dobbs v. Jackson Women\u2019s Health Organization, the case that overturned Roe v. Wade and the right to abortion, galvanized the reproductive rights movement. House Democrats, joined by eight Republicans, promptly passed legislation that would have created a national right to contraception. Republicans blocked a companion bill in the Senate.<\/p>\n
Now, reproductive rights\u00a0advocates are pressing their case in the states. Even before Dobbs, some states had taken steps to protect the right to contraception, by\u00a0either statute or constitutional amendment; 13 states and the\u00a0District of Columbia currently have such protections, according to KFF, a health policy research organization.<\/p>\n
This month, the movement scored an important but little-noticed victory in Nevada, where the Democratic-controlled Legislature passed a bill, inspired by the defeated federal measure, that would guarantee a right to contraception. Gov. Joe Lombardo, a Republican, has not said whether he will sign it, and a spokeswoman said she could not speak to his views. Proponents of codifying\u00a0such a right see Nevada as a test case.<\/p>\n
\u201cIt\u2019s going to be up to Republicans to choose whether they want to protect the right to contraception,\u201d Senator Edward J. Markey, Democrat of Massachusetts and the sponsor of the failed Senate bill, said in an interview. He called the Dobbs decision \u201ca preview of coming atrocities.\u201d<\/p>\n
On Wednesday, Mr. Markey and Representative Kathy Manning, Democrat of North Carolina, reintroduced legislation to create a national right to contraception. With the House now controlled by Republicans and Senate Democrats well short of the 60 votes needed to break a filibuster, the legislation is most\u00a0likely dead on arrival in Washington.<\/p>\n
Polls have consistently shown broad bipartisan support for access to contraception, and while Republicans may not be eager to enshrine a right to it in federal law, neither do they generally want to ban it. Still, some opposition to birth control does exist.<\/p>\n
The Roman Catholic Church opposes any form of artificial birth control, arguing that some contraceptives \u201ccan cause early abortions.\u201d Some abortion foes claim that two common methods of preventing pregnancy \u2014 intrauterine devices and emergency contraception, also known as the morning-after pill and marketed as Plan B \u2014 are \u201cabortifacients\u201d that prevent a fertilized egg from implanting in a woman\u2019s uterus.<\/p>\n
But the American College of Obstetricians and Gynecologists says intrauterine devices work \u201cmainly by preventing fertilization of an egg by sperm.\u201d And the Food and Drug Administration said last year that Plan B does not prevent a fertilized egg from implanting in the womb and cannot be considered an abortion pill.<\/p>\n
Critics of codifying a right to contraception say such legislation amounts to a solution without a problem \u2014 or is purely a political gesture meant to put Republicans in a difficult spot and spur voters into rejecting them at the ballot box.<\/p>\n
\u201cMost Republicans saw that as a political vote, not really a serious vote,\u201d John Feehery, a Republican strategist, said of the vote on the House bill last year. \u201cIn the Republican coalition, there is a small but vocal element that is anti-contraception, but the vast majority of Republicans don\u2019t have any interest in making contraception illegal.\u201d<\/p>\n
Since the Dobbs decision, debates over birth control have also become increasingly tied up with abortion. Some Republicans who voted against the House bill complained that it would have sent more money to Planned Parenthood, an organization that is a target for many in the party because it is a major provider of abortions. Representative Cathy McMorris Rodgers, Republican of Washington, described the bill as a \u201cTrojan horse for more abortions.\u201d<\/p>\n
Writing for the majority in the Dobbs case, Justice Samuel A. Alito Jr. stressed that the ruling \u201cconcerns the constitutional right to abortion and no other right.\u201d But in a concurring opinion, Justice Thomas\u00a0said the Supreme Court should reconsider other rulings, including\u00a0Griswold v. Connecticut, a 1965 decision that established the right of married couples to use contraception. He said the logic of the majority opinion in Dobbs undermined Griswold.<\/p>\n
\u201cFor years, we asked elected officials around the country to pay more attention to the conflation of abortion and contraception,\u201d said Clare Coleman, the president and chief executive of the National Family Planning & Reproductive Health Association, which represents health providers. \u201cWe shouldn\u2019t have to answer the \u2018Why are we worried?\u2019 question anymore.\u201d<\/p>\n
Ms. Coleman and her allies in the movement say that complacency is what cost American women the right to abortion. They also see what they regard as worrisome efforts to restrict access to birth control.<\/p>\n
In 2021, Republicans in Missouri tried to ban taxpayer funding for intrauterine devices and emergency contraception. Missouri is one of four states \u2014 the others are Arkansas, Mississippi and Texas \u2014 that have ejected Planned Parenthood, a major provider of birth control, from their Medicaid programs.<\/p>\n
At the same time, the federal family planning program known as Title X is being challenged in Texas, where a federal judge ruled late last year that it violated parents\u2019 constitutional rights by permitting clinics to provide birth control to teenagers without parental consent. If the ruling is upheld, it could threaten access to contraceptives for minors nationwide.<\/p>\n
So far, though, the Dobbs case has not spawned the kind of widespread attacks on birth control that advocates feared. In fact, access to contraception has been expanded in a handful of red states, according to the Guttmacher Institute, which tracks reproductive health measures.<\/p>\n
In Indiana, Gov. Eric Holcomb signed legislation allowing pharmacists to prescribe birth control. In West Virginia, Gov. Jim Justice signed a bill requiring insurance plans to cover 12-month supplies of contraceptives from pharmacies. In Arkansas, Gov. Sarah Huckabee Sanders signed legislation requiring Medicaid to cover intrauterine devices and other long-acting reversible contraceptives for women who have just given birth. All are Republicans.<\/p>\n
The push for laws declaring a right to contraception comes as the F.D.A. is considering allowing birth control pills to be sold over the counter for the first time. A panel of advisers to the agency said last month that the benefits of over-the-counter contraception outweighed the risks. In anticipation of possible action by the F.D.A., Senate Democrats recently reintroduced legislation that would require insurers to cover over-the-counter contraception.<\/p>\n
But Senator Catherine Cortez-Masto, Democrat of Nevada and one of the bill\u2019s chief sponsors, said she did not know if the measure\u2019s backers could get any Republican support in the current post-Dobbs climate. \u201cWe think that we should,\u201d she said, \u201cbut, you know, it\u2019s a different and challenging time right now.\u201d<\/p>\n
In North Carolina, the Dobbs case and abortion politics doomed a bill\u00a0to affirm a right to contraception, said State Senator Lisa Grafstein, a Democrat who introduced the measure. Ms. Grafstein said in an interview that she had spoken to at least one Republican who was interested in becoming a co-sponsor.<\/p>\n
But that was before lawmakers in the state moved to ban most abortions after 12 weeks.<\/p>\n
\u201cOnce the abortion debate took off, there wasn\u2019t any more discussion of these kinds of issues,\u201d Ms. Grafstein said. \u201cThe tenor of things has really changed a lot in terms of whether a conversation like that would even be possible at this point.\u201d<\/p>\n
Even in Nevada \u2014 a state where voters codified a right to abortion through a referendum more than three decades ago, in 1990 \u2014 it was tough for the bill\u2019s backers to get Republican support. Ultimately, a handful of Republicans voted for the measure.\u00a0Its chief sponsor, Assemblywoman Selena Torres, a Democrat, said she was hopeful that the governor would sign it.<\/p>\n
\u201cThis was a very separate topic from abortion,\u201d Ms. Torres said. \u201cBut I do think that the Dobbs decision is ultimately what drives this conversation.\u201d<\/p>\n
Supporters of codifying a right to contraception are hoping Nevada will serve as a model for other states and will also put pressure on Republicans in Congress. Americans for Contraception, an advocacy group that has orchestrated the state-by-state strategy, ran attack ads last year against Republicans\u00a0who voted against the House bill.<\/p>\n
The group says it has lined up Democratic state legislators in five more states \u2014 Arizona, Mississippi, Tennessee, Virginia and Wisconsin \u2014 to introduce bills next year to\u00a0guarantee a right to contraception.<\/p>\n
\u201cLast year, 195 House Republicans tried to get away with opposing the right to contraception by voting against a straightforward bill,\u201d said Dana Singiser, a senior adviser to the group. \u201cNevada demonstrates that some of their colleagues at the state level recognize that supporting the right to contraception is a policy and a political no-brainer.\u201d<\/p>\n
In Washington, there is a ready explanation for why so many Republicans voted against the House bill: Susan B. Anthony Pro-Life America, an anti-abortion group, decided to include the vote in its scorecard for lawmakers.<\/p>\n
The organization\u00a0derided the measure as the \u201cPayouts for Planned Parenthood Act\u201d and said it would \u201ctrample conscience rights\u201d in states that allow health providers or pharmacists to refuse to provide birth control. The group asserted that the bill\u2019s definition of contraceptives \u2014 \u201cany drug, device or biological product intended for use in the prevention of pregnancy\u201d \u2014 was overly broad and could be construed to include abortion pills.<\/p>\n
\u201cIf you\u2019re a Republican, you want to be seen as pro-life, and the Susan B. Anthony group, they help define who\u2019s pro-life,\u201d said\u00a0Mr. Feehery,\u00a0the Republican strategist, adding, \u201cI think most Republicans would much rather be on the side of Susan B. Anthony than on the side of Planned Parenthood.\u201d<\/p>\n