Jul 28, 2022 - Health

Dems fear red states banning abortion will zero in on birth control next

Illustration: Maura Losch/Axios

Democrats' anxiety over access to birth control is peaking as more red states attempt to adopt restrictions on emergency contraception and IUDs and could move to potentially ban them.

The big picture: Congressional Democrats are trying to codify some Supreme Court precedents addressing contraception, anticipating the court's 6-3 conservative majority could overturn them in a future term, said Kaiser Family Foundation senior vice president Alina Salganicoff.

  • "Many people didn't believe that Roe v. Wade could be overturned, until it actually happened," Salganicoff told Axios.

Driving the news: Senate Republicans on Wednesday blocked a Democratic attempt to create a federal right to birth control, just a week after the House passed a companion legislation with bipartisan support.

Between the lines: Justice Clarence Thomas wrote in a concurring opinion in the ruling overturning Roe v. Wade that the Supreme Court should reconsider "all of this Court’s substantive due process precedents," including Griswold v. Connecticut and Eisenstadt v. Baird, both of which guarantee birth control access.

  • No other justice joined Thomas in his opinion. Justices Samuel Alito and Brett Kavanaugh both asserted that the ruling striking the federal right to abortion will not lead to further consequences for reproductive health.
  • "The Supreme Court has little appetite to overturn Griswold any time in the foreseeable future," Lawrence Gostin, a law professor at Georgetown University, told Axios.

Yes, but: While these legal precedents still stand, the high court has previously ruled to limit contraceptive access.

  • In 2014, justices ruled in Burwell v. Hobby Lobby that private, for-profit companies were exempt from the Affordable Care Act's contraceptive mandate because the requirement violated their religious freedoms.
  • The court sided with the companies, which argued that emergency contraceptions and IUDs could end a pregnancy.

What they're saying: "We've had, for years, an effort by abortion opponents to conflate contraception with abortion, and we've seen it specifically around emergency contraception and IUDs" said Elizabeth Nash, lead state policy analyst for the Guttmacher Institute, a research organization that supports abortion rights.

  • It is "dangerous to tell people that contraception could end a pregnancy because it doesn't," Nash added, arguing that such misinformation "dissuades people ... from accessing contraceptives."

State of play: Republican-led states are particularly hostile to Plan B and other emergency contraception pills and IUDs, which are one of the most commonly used birth control methods.

  • Experts believe that some abortion bans that these states have enacted could be interpreted to cover these types of contraceptives.
  • The Food and Drug Administration says that an IUD "prevents sperm from reaching the egg, from fertilizing the egg, and may prevent the egg from attaching (implanting) in the womb."
  • When looking at laws that ban abortion starting at fertilization, "if you believe that life begins at fertilization, and if the IUD prevents a fertilized egg from implanting in the uterus," a prosecutor could potentially argue that this form of contraception violates the law, said Naomi Cahn, co-director of the University of Virginia Law's Family Law Center.

By the numbers: Nine states have adopted restrictions on emergency contraception, including allowing insurance companies to decline to cover it and letting pharmacists opt out of dispensing it on religious or moral grounds, per Guttmacher.

  • 12 states have laws that let some health care providers to refuse to provide services related to contraception based on their personal beliefs.

Zoom in: Texas is the only state whose family planning program excludes emergency contraception from the services it covers, and several others have recently attempted to limit funding.

  • Earlier this year, lawmakers in Alabama introduced a bill to prohibit "public funding or subsidization of abortion activities," including emergency contraception, which cannot induce an abortion.
  • Last year, Missouri state lawmakers attempted to pass a bill to fund the state's Medicaid program that contained language that would have barred the use of state funds for emergency contraception and IUDs.
  • In Louisiana, a Republican lawmaker, with support of anti-abortion groups, introduced a bill that would have allowed prosecutors to charge a person with homicide if they got an abortion, and the original bill's language would have made some forms of contraception illegal in the state.

What we're watching: States with restrictions on emergency contraception, and those that have so-called conscience clauses around birth control, could potentially move to further restrict access if the Supreme Court overturns decisions that protect contraception access, Nash said.

Worth noting: Approximately 65% of U.S. women between the ages of 15 and 49 use contraception.

  • Over 99% of sexually active women have used at least one contraceptive method, per Guttmacher.

The intrigue: Since contraceptives are FDA-approved, it may be difficult for states to make them illegal.

  • Instead, they could make it more difficult to access them by enacting age restrictions, continuing to limit public funding and limiting the amount of information available around contraception.
  • Experts say that legal precedent holds that states don't have the authority to ban FDA-approved drugs, Axios' Tina Reed reports, but that will not stop conservative lawmakers from trying.

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