Democrats’ recently introduced Right to Contraception Act reaches far beyond contraception, guaranteeing funding for Planned Parenthood while overriding Religious Freedom Restoration Act conscience protections.
The bill forces healthcare providers to offer contraceptives regardless of their personal convictions, arguing that laws in 12 states allowing providers to refuse services based on conscience “impede patients from obtaining their preferred method.”
It also singles out Arkansas, Mississippi, Missouri, and Texas for banning Planned Parenthood from their Medicaid programs. Under the act, any state or federal law that “impedes access to contraceptives, contraception, or contraception-related information” — including by placing limitations on “facilities” where these services are offered — will be prohibited, opening the floodgates for taxpayer funding to Planned Parenthood.
The bill’s broad definition of contraceptives, which applies to “any device or medication used to prevent pregnancy, whether specifically used to prevent pregnancy or for other health needs,” may also create federal protections for chemical abortion, according to Susan B. Anthony Pro-Life America President Marjorie Dannenfelser.
Other health needs “could include noncontroversial applications of the drug but could also include the use of the drug to induce abortion,” Dannenfelser wrote in a letter to Congress.
Planned Parenthood, unsurprisingly, is fully on board with the bill. “While birth control is no substitute for abortion access, access to contraception is critical to control our own bodies, reproductive health care, and futures,” Planned Parenthood CEO Alexis McGill Johnson said.
Democrats point to Justice Clarence Thomas’s concurring Dobbs opinion, in which he suggested the court reconsider Griswold v. Connecticut’s use of substantive due process, as evidence of the bill’s necessity.
A case challenging Griswold remains extremely unlikely, as no state has proposed banning contraceptives. Additionally, as Justice Alito stated in the Dobbs majority opinion, “Rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’” Even Thomas doesn’t argue contraception should be banned: He leaves the question open as to whether rights the court grounded in substantive due process could be protected in “other constitutional provisions.”
That hasn’t stopped Democrats from predicting the worst.
“For this far-right results-oriented Supreme Court and MAGA Republicans, controlling women’s bodies doesn’t just stop at forcing women to give birth, they actually want to ban contraception,” said Sen. Mazie Hirono (D-HI). “Everyone in this country needs to realize that nothing is off the table for MAGA Republican controlled state governments and this Court — and we need to act now to protect the right to contraception.”
Sen. Hirono, along with Sens. Edward J. Markey (D-MA) and Tammy Duckworth (D-IL), wrote that the bill is necessary because some states are already “defining abortion broadly enough to include contraception.”
The statement oversimplifies concerns some have raised around “emergency contraceptive” devices such as IUDs and morning-after pills, including ella and Plan B. These pills work not only to prevent pregnancy by blocking the release of an egg but also can prevent already fertilized eggs from implanting. Therefore, they act as an abortifacient, raising a separate set of questions on protecting an already conceived pregnancy.
These concerns do not amount to banning birth control broadly. John McCormack, writing for National Review, notes that Republicans do not question the legal right to contraception.
“As for contraception by itself, pro-life Republicans in the House say they are fine with federal funding of it — so long as it is not used to subsidize abortion clinics and abortion doctors — and many Republicans even want to make it available over the counter,” McCormack writes.
But admitting as much would put an end to Democrats’ narrative that Republicans want to strip away rights. If Democrats wanted to propose a bill protecting contraception, they could do so with Republican support. As it stands, the Right to Contraception Act functions only to ensure funding for Planned Parenthood, eliminate conscious protections, and characterize Republicans who reject it on those grounds as opposing established rights.
Katelynn Richardson is a Summer 2022 Washington Examiner fellow.
