‘Angry Court’ Might Come After Contraception Next, Experts Warn

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Still reeling from the Supreme Court decision that overturned Roe v. Wade, advocates for reproductive rights fear that an assault on access to birth control may be next.

When the Supreme Court released its final decision in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas wrote in a concurrence that the court should reconsider Griswold v. Connecticut, the 1965 landmark decision that gave married couples the right to use contraceptives.

While he stood alone in that concurrence, experts think other supporters might still lurk on the court.

“I think there are probably five votes for restricting contraception in some fashion,” said Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale Law School. “Really what it’s dependent on is the will of the states to try to ban contraception outright.”

And some conservative state legislators have already said publicly they might go after contraception. Idaho state Rep. Brent Crane, chair of the House State Affairs Committee, hinted at holding a hearing on banning emergency contraceptives after the Supreme Court decision leaked earlier this year.

There’s no basis for the idea that contraceptives cause abortions. IUDs, monthly birth control and emergency contraception, also called the morning after pill, all work by preventing either ovulation or fertilization. None are shown to be capable of terminating an existing pregnancy, which doesn’t begin until after a fertilized egg implants in the uterus.

But that hasn’t stopped policymakers from attempting to confuse the facts, particularly when it comes to emergency contraceptive measures.

The six-week abortion ban that Texas passed in 2021 misdefined pregnancy as beginning with fertilization. And based on the political pressure on the FDA when it first approved Plan B for over-the-counter sale, the agency requires Plan B to carry a label claiming the drug may prevent the implantation of a fertilized egg — despite a lack of evidence that it does so.

In the week since the Supreme Court abortion ruling, confusion has already spread. Just a few days after the decision, a major hospital system in Missouri stopped offering Plan B, citing a supposed lack of clarity over the state’s expansive new abortion ban. The hospital network, Saint Luke’s Health System, backtracked after Missouri Attorney General Eric Schmitt (R) clarified that the ban does not cover emergency contraception.

I could see them going after emergency contraception to test the waters, and then they’ll go after contraception.Priscilla Smith, Program for the Study of Reproductive Justice at Yale Law School

Because the FDA has the sole authority to approve drugs and medical devices, it’s not clear that states even have the authority to ban approved birth control or emergency contraceptives. New bans would also be extremely unpopular. Contraception and emergency contraception are in widespread, regular use, and almost 90% of sexually active Americans use contraceptive methods at any given time.

But with Dobbs having obliterated the abortion rights of millions of people, and a growing number of Republicans insisting, falsely, that some contraceptives cause abortions, advocates of reproductive freedom are understandably afraid.

“It’s totally on the agenda,” Smith said. “I could see them going after emergency contraception to test the waters, and then they’ll go after contraception.”

In just the past year, three states attempted to restrict emergency contraception by equating it with abortion.

In Idaho, lawmakers succeeded in banning health clinics in public schools (including college campuses) from dispensing emergency contraception under a bill prohibiting “abortion-related activities.”

In Missouri, Republicans in the state Senate voted to bar Medicaid from funding emergency contraception and IUDs, which the amendment’s sponsor claimed “kills a human life.”

In Arizona, where an existing law protects health care entities that do not assist in “causing the death of any individual,” the state Senate voted to add emergency contraception as something that causes death. (The Arizona and Missouri measures ultimately failed.)

These attempts have laid the groundwork for broader bans by trying to blur the differences between contraception and abortion, said Michele Goodwin, the founding director of the Center for Biotechnology and Global Health Policy at the University of California, Irvine.

“The rhetoric is being teed up in a way that is so deliberate,” she said.

Members of Congress such as Reps. Marjorie Taylor Greene (R-Ga.) and Matt Rosendale (R-Mont.) are on the record claiming, falsely, that emergency contraception causes abortion. (It works by preventing ovulation and fertilization.) Sen. Marsha Blackburn of Tennessee called Griswold v. Connecticut “constitutionally unsound,” while Blake Masters, who is running for U.S. Senate in Arizona, said he would only vote for judicial nominees who agreed that Griswold was “wrongly decided.”

“Roe v. Wade was a horrible decision,” his campaign website reads. “But the fight doesn’t stop there.”

Smith and other legal experts believe the Supreme Court is ready to accept these falsehoods about contraception.

Justice Samuel Alito already did so in Burwell v. Hobby Lobby, the 2014 decision that allowed some corporate health care plans to be exempt from Obamacare’s requirement to cover contraceptives. Hobby Lobby, the craft store giant, challenged the mandate on the basis that the company owners, the Green family, believed contraceptives cause abortion.

Alito, who wrote the majority ruling in favor of Hobby Lobby, acknowledged that their beliefs contradicted the prevailing science. But he didn’t bother to strike any balance in the final ruling.

“The ease by which the court majority accepted that contraceptives were abortifacients was striking,” said Wendy Parmet, director of the Northeastern University program on health policy and law.

We have a court majority that is zealously anti-abortion and is equally zealously anti-science. This is an angry court. These are justices that have been fighting for their entire life waiting for this moment.Wendy Parmet, Northeastern University program on health policy and law

Justice Brett Kavanaugh issued an opinion with nearly identical logic on contraception later that year. In a dissent he wrote as a judge on the U.S. Court of Appeals for the D.C. Circuit, he sided with an anti-abortion group challenging the Obamacare mandate on the basis that the group believed some forms of contraception cause abortion.

“We have a court majority that is zealously anti-abortion and is equally zealously anti-science,” Parmet said. “This is an angry court. These are justices that have been fighting for their entire life waiting for this moment. If this issue gets to this current Supreme Court, I think you have to assume they are favorably inclined to accept broader prohibitions.”

The twisted logic in Dobbs endangers the right to birth control because the court reasoned that the only rights protected by the Constitution are rights that are “deeply rooted in the nation’s history and traditions.”

Although people have used contraceptives for centuries, a host of states banned contraceptives around the turn of the century. The right to access birth control is only a few decades old: Griswold was decided in 1965 and only applied to married couples. The Supreme Court case that recognized every person’s right to use birth control is only one year older than Roe v. Wade.

“The world turns back to the 1860s. It’s crazy to say that liberty in this country is based on the traditions of this country, which is founded on oppression — of people of color, Black people in particular, and women.” Smith said.

Although no state has tried to ban contraception outright in recent years, Republican-led states have been finding increasingly creative ways to restrict peoples’ access to it, said Elisabeth Nash, the principal policy associate for state issues at the Guttmacher Institute.

Eighteen states have some form of ban on using public funds for family planning. Four have kicked Planned Parenthood out of their Medicaid network — leaving millions of low-income patients without any local access to birth control. A dozen states allow health care workers, from doctors to pharmacists, to refuse to provide or fill contraceptive prescriptions.

Texas — which built its own family planning program from scratch in order to defund Planned Parenthood — does not cover emergency contraception for low-income patients and requires anyone under the age of 18 to have a parent or guardian’s permission to get a birth control prescription. And the state’s family planning program is so full of holes that tens of thousands of women are estimated to have lost reliable access to contraceptives.

Nash fears the Dobbs decision will embolden states to make it even more onerous to get access to contraceptives. They could target youth access or move state family planning dollars away from contraceptives.

“If we’re taking lessons and cues from the past, think about what the potential was for discrimination under Jim Crow, what was allowed to persist even though it was completely antithetical to the Constitution and its supposed values,” said Goodwin.

“What could come next?” she said. “It could be unimaginable.”

This article originally appeared on HuffPost and has been updated.

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