With federal abortion protections likely to be struck down this summer, anti-abortion lawmakers are turning their attention to the next target: birth control — in particular, emergency contraception and intrauterine devices (IUDs).
These talks are still in the early stages. Brent Crane, a senior Idaho state lawmaker, stated publicly that he would like to hold hearings about banning emergency contraception. Earlier this month, Louisiana lawmakers considered a bill that would have classified abortion as homicide — and that could, experts say, have criminalized IUDs and emergency contraception as well. The Louisiana bill ultimately failed.
Though it’s early, the support for these bans is there, reproductive policy observers told The 19th. Influential anti-abortion organizations have indicated that they support legislation banning these birth control techniques. And recent litigation over the Affordable Care Act’s mandated contraceptive coverage has showcased the potency of abortion opponents’ appetite for limiting access to IUDs and emergency contraception.
“We are likely to see emergency contraception, at least, as the next step,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. “There are a number of hints of that happening. And to me, the largest indication was the concerted litigation campaign against the ACA’s contraceptive mandate, where it’s fairly obvious there was an attempt to confuse the public about what emergency contraception and IUDs do, and what they are.”
The impact would be huge. IUDs are the most effective form reversible birthcontrol, and their usage has risen dramatically over the past ten years. According to the IUD Database, approximately 1 in 10 people who use birth control have one. Centers for Disease Control and Prevention.Similar to emergency contraception pills, they are becoming more popular. According to the study, 22 percent of women aged 15-44 who had sex between 2013 and 2015 used an emergency contraception tablet at least once. Kaiser Family Foundation.
Two Supreme Court cases provide protection for the right to contraception. The landmark 1965 ruling is one. Griswold v. Connecticut, which found that married couples were entitled to use birth control. The 1972 ruling in a case known was referred to as Eisenstadt v. Baird, which extended this protection to unmarried individuals.
Roe v. Wade, the 1973 case that guaranteed the federal right to an abortion, relies on the legal notion that the constitution grants a right to privacy — as does Griswold. Justice Samuel Alito drafted an opinion that would overturn this decision. Roe, he argued that it wouldn’t require gutting Griswold.
But even with GriswoldNevertheless, conservative legal minds have created the foundation for weakening contraceptive protections.
“The immediate threat is there even if you don’t touch Griswold. It’s in the way that a lot of anti-abortion actors or activists and even in such cases judges have been defining abortion,” said Rachel Van Sickle-Ward, a political studies professor at Pitzer College who has studied the politics of contraception. “It isn’t like a totally pie in the sky, out of left-field idea. This is already built into the logic of their arguments.”
The argument is that IUDs or emergency contraception, which can make it harder for eggs not to be fertilized but also prevent fertilized egg from implanting into the uterus, can cause abortions. Physicians and other reproductive health experts agree that this view is unsupported by medical evidence.
But in 2014, the Supreme Court’s majority allowed for exactly that line of reasoning in a case known as Burwell v. Hobby Lobby Stores, Inc.Legal scholars said that this was the right decision. The 19thThis could allow states to restrict contraception access.
The Hobby Lobby decision, also authored by Alito, allowed for certain employers to partially opt out of the Affordable Care Act’s “contraceptive mandate” — requiring they provide insurance that covers birth control with no copay — if it violated their religious beliefs, including the idea that life begins at fertilization and that contraception blocking fertilized eggs from implanting constitutes an “abortion.”
“If a legislature were to pass something similar, to say life begins at fertilization or conception or anything like that, then you could see a court saying the same thing: ‘These elected officials say life begins at fertilization, we can’t step in and say that doesn’t qualify as an abortion,’” said Michael Ulrich, an assistant professor of health law, ethics and human rights at Boston University. “Even this idea of what is an abortion could become a lot more expansive.”
The federal government has greater tools to challenge state laws prohibiting contraception than it does access to abortion. “There’s a role for the federal government to play on contraception, and it’s easier to see than for abortion,” said Elizabeth Nash, who tracks state policy for the Guttmacher Institute.
The Affordable Care Act’s contraceptive mandate — though significantly weakened by the Hobby LobbyDecision and a subsequent Supreme Court ruling — could be used to argue against state laws restricting contraceptive funding. The government could also argue against state contraception bans, as this could complicate efforts to administer federal Title X, which funds family planning clinics all across the country. But these are legally untested questions, and it’s hard to know how those arguments might hold up.
“That would not be a settled lock as quickly as banning abortion,” said Laurie Sobel, associate director of women’s health policy at the nonpartisan Kaiser Family Foundation. “If IUDs and Plan B are illegal, I foresee that to be heavily litigated.”
Van Sickle-Ward stated that the federal government may be more likely to oppose contraception bans than abortion ones due to public perceptions. While abortion rights are popular, the way they are presented can affect how people feel about them. Contraceptive rights, on the other hand, have for decades had stronger, broader support, including with Republican-identified voters. As recently as 2019, polling from the Public Religion Research Institute found that almost two-thirds of Republicans supported government-funded health programs covering contraception — while barely a quarter supported such coverage for abortion.
However, she and others pointed out that federal government legal challenges could still be unsuccessful. The Hobby LobbyThe precedent allows courts to uphold contraceptive prohibitions, especially in light of the rightward shift of federal courts.
It’s not yet clear which states might pursue these kinds of contraceptive bans or when. Most state legislatures are part time; most have completed their year-end sessions. And even many lawmakers who have passed legislation banning abortion “at fertilization” have been careful to include exemptions for birth control.
Even with RoeSoon to be overturned, politics of promoting such bans may prove more difficult than restrictions on abortion. Crane, the Idaho lawmaker that supports bans for emergency contraception. saidHe was unsure if the IUD restrictions would be pushed by him. Last year, lawmakers in Missouri sought to block Medicaid coverage of IUDs and emergency contraception — but those efforts failed.
The will to prevail is strong. Many prominent anti-abortion advocates support restricting access to IUDs, and emergency contraception. Students for Life is a national organization that advocates for restrictions on abortion. has endorsedbanning IUDs and emergency contraception, as well the pill and other hormonal birth control methods. National Right to Life, another anti-abortion organization of great importance, does not officially take a position on contraception. However, it has issued a statement to the contrary.The Washington Post, the organization clarified its opposition to “any device or drug that would destroy a life already created at fertilization.”
National Democrats have already begun campaigning on the issue, arguing that potential state contraception bans are another reason to elect Democrats in this fall’s midterm elections. Last week, Senator Patty Murray, a Washington Democrat, stated that the threat to abortion rights extends at least to these two forms.
“Republicans don’t just want to ban abortion. They’re coming after the birth control that millions of patients rely on to plan a family, which includes IUDs and Plan B,” Murray said.
However, Democrats have not yet offered any legislative plan to maintain access to either method.
“To the extent Democrats want to protect these rights that are clearly in the crosshairs — and apparently they were unwilling to protect the right to an abortion — they should be putting up to vote the right to contraception, to same-sex marriage, and the rights currently protected by the Constitution,” Sepper said. “They should be codifying these rights and making them stick for the future.”
