EXCLUSIVE — Amid Clarence Thomas’s lone call for the Supreme Court to reconsider the established constitutional protection of contraception access, Joni Ernst is reintroducing her long-standing bill to the Senate to expedite over-the-counter access to birth control.
Ernst, a pro-life senator who has long pushed for safe oral contraceptives to be accessible without a prescription, is joined by fellow Iowa Republican Chuck Grassley. The Allowing Greater Access to Safe and Effective Contraception Act would require the FDA to give priority review to any supplemental application to move prescription birth control pills already on the market to over-the-counter status. Although the Affordable Care Act made most insurers fully cover the cost of birth control, including far more expensive IUDs with near-zero failure rates, the prescription requirement for oral contraception, which are, statistically speaking, safer than Tylenol, remains a barrier for uninsured women.
“Allowing women to purchase birth control over-the-counter and without the requirement of a prescription is an important and commonsense step in expanding health care choices and removing unnecessary hurdles, especially for those in rural areas who may need to travel long distances in some cases just to see their doctor,” Ernst told the Washington Examiner of her bill. Iowa Republicans Ashley Hinson and Mariannette Miller-Meeks — herself a former Iowa Director of Public Health — are co-sponsoring the House version of the bill.
The rest of the justices who voted to overturn Roe v. Wade explicitly affirmed that their ruling did not implicate any of the other protections established under the Constitution’s supposed right to privacy, including contraception access and marriage equality, and with near universal support for contraception among pro-life voters, even ruby-red Republicans such as Josh Hawley of Missouri have publicly opposed overturning Griswold v. Connecticut, the SCOTUS case that established federal contraception access. But Democrats have responded to the Dobbs ruling overturning Roe and, more specifically, Thomas’s call for Congress to codify long-standing rights with a spate of new bills. Although the House bill codifying gay and interracial marriage earned scores of Republican votes and may actually pass the Senate, Republicans — including pro-choice centrists such as Susan Collins of Maine — objected to the Democrats’ contraception bill on the grounds that it supersedes the Religious Freedom Restoration Act and all local religious freedom laws.
The Ernst bill would not codify the legal right to contraception, but unlike gay marriage, the legal status of contraception doesn’t seem likely to face legal challenges. The impediment to contraception use remains access, not legality. (Not only is birth control legal in every state, but both the ACA’s contraception mandate and Title X funding apply in every state.)
Furthermore, federalists may question the national government’s role in codifying the right to contraception, but nobody can deny the fact that liberating safe medications for over-the-counter use is literally the job of the FDA. And unlike the Democrats’ contraception bill, the Republican bill serves two underserved constituencies: uninsured women and, in particular service to Ernst and Grassley’s constituents, those in rural areas.
Ernst has been pushing this bill in the Senate for over half a decade now, and Miller-Meeks introduced a bill as a state senator to allow Iowa women access to over-the-counter contraceptives. The question is whether Democrats will finally accept Ernst’s offer. Planned Parenthood has historically opposed GOP pushes to deregulate the pill, but as recently as 2019, Alexandria Ocasio-Cortez endorsed making oral contraceptives over-the-counter, as have the American Congress of Obstetricians and Gynecologists, the American Academy of Family Physicians, and the American Medical Association.
