Despite insistence from both Justice Samuel Alito and a flotilla of right-wing publications that the draft opinion overturning abortion rights won’t touch any of its privacy-based cousins, Republican lawmakers are already turning to contraception.
Specifically, the Overton window seems to be shifting to include “debate” around intrauterine devices (IUDs) and common emergency contraception like Plan B.
While these nascent efforts to attack the contraceptives are new, the anti-abortion antagonism towards them is not. As emerged particularly during the fight against the Affordable Care Act’s mandated contraception coverage, anti-abortion groups have long tried to conflate these birth control methods with abortion.
That conflation runs counter to the science and, occasionally, counter to the movement’s political interest. Some groups within the movement have muddied their stance on contraception situationally, so as to not alienate potential supporters.
“Now it’s just loud,” Robin Marty, communications director for the West Alabama Women’s Center and an author who has written extensively on abortion, told TPM. “And it’s loud because they think they have a Supreme Court that will allow them to do what they want. I don’t think it’s alarmist to say it’ll become difficult if not impossible in many states to access birth control.”
In Idaho, hearings considered on “complications” from Plan B
Idaho House State Affairs Committee Chairman Brent Crane (R) said Friday that he would hold hearings on banning emergency contraception and the the two drugs collectively known as “the abortion pill” in an interview with Idaho Public Television.
“IUDs, I’m not for certain yet on where I would be on that particular issue,” he said.
He did some cleanup a day later, saying that he supports IUDs, but maintained that he’s still interested in scrutinizing Plan B and the abortion pill.
He gestured vaguely at “complications” from Plan B-like pills and “health concerns for the mom” from the abortion drugs.
Common side effects of Plan B are mild: the Mayo Clinic names nausea and cramps among them. The “abortion pill” — usually, except in states that have arbitrarily made mifepristone hard to get, mifepristone and misoprostol together — is extremely safe.
Generally, a woman is 14 times more likely to die during or after childbirth than from abortion complications.
“The right is still utterly obsessed with the idea that emergency contraception in general is an abortifacient,” Marty said. “Even though it has been proven repeatedly that it doesn’t affect a developing pregnancy or stop implantation.”
A Louisiana bill inviting homicide charges for abortions could potentially criminalize emergency contraceptives, IUDs and in vitro fertilization
The Louisiana House Committee for the Administration of Criminal Justice advanced legislation last week asserting that life begins at fertilization and allowing prosecutors to bring homicide charges anyone who undergoes or provides an abortion. So much for not going after the women!
Like many abortion restrictions, this one could hurt women beyond those seeking to end an unwanted pregnancy.
“If the state defines personhood as beginning at conception or fertilization without exceptions, they could use the same argument to say that Plan B or IUDs destroy a person, to the extent they stop an embryo from implanting,” said Greer Donley, assistant professor at the University of Pittsburgh Law School.
In most cases, IUDs prevent fertilization. Plan B has also been shown not to interfere with implantation, though an outdated Food and Drug Administration label has provided fodder to the anti-abortion movement’s opposition.
There are other radical parts of this bill, including a provision declaring any federal law or court ruling protecting abortion rights null and avoid, and a threat that any state judge who overturns the bill will be impeached.
Legislators are pursuing old goals with new vigor
This isn’t the first time Republicans in very recent history have tried to ban or curtail access to contraceptives.
Missouri Republicans came close to inviting, by the governor’s count, $722 billion in budget cuts in 2021 as they attempted to limit when the state pays for contraceptives by reclassifying them as abortion-inducing. The amendment to an annual bill would have barred Medicaid funding for Plan B and its like and IUDs, which could have endangered the state’s entire Medicaid program.
“If a device that’s been approved by the FDA kills a human life, that is an abortion,” said the amendment’s author, state Sen. Paul Wieland (R). “I don’t know why the rest of the world doesn’t see it that way.”
The amendment was finally stripped out in an emergency special session, days before the cuts would have taken effect.
The Supreme Court has a bleak recent history on contraception
For those still seeking reassurance that the Supreme Court will protect access to contraception, recent decisions handed down by even its more liberal, pre-Trump iterations instead present warning signs.
In Burwell v. Hobby Lobby Stores, the Court ruled in 2014 that privately held for-profit companies can deny contraception coverage to employees if they consider birth control to be abortion.
“The owners of the businesses have religious objections to abortion, and according to their religious beliefs, the four contraceptive methods at issue are abortifacients,” Alito wrote for the majority. The contraceptives in question were two kinds of morning-after pills and two IUDs.
The Court curtailed birth control access under the Affordable Care Act again in 2020.
Some experts see worrying indicators in an even earlier case, Gonzales v. Carhart, where the Court ruled that states get wide discretion to pass legislation in areas where there is “medical and scientific uncertainty.”
“The Court allowed the legislature to decide,” Donley said. “So if states believe Plan B is an abortion and they can find a minority of anti-abortion OBGYNs to agree, then I suspect the Supreme Court will allow them to ban this as abortion. The Court wouldn’t have to touch its birth control precedent to do so.”
What the conservative Justices have said on contraception
Justice Clarence Thomas, as part of a 2019 screed equating abortion with racial eugenics, looped birth control in too.
“The foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement,” he wrote. “That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause.”
Alito, in his Burwell v. Hobby Lobby opinion, and Justice Brett Kavanaugh, during his confirmation hearings, have both uncritically parroted false claims from religious groups conflating contraception and abortion.
Justice John Roberts joined the conservative majority in Gonzales v. Carhart and the recent decisions allowing employers to curtail contraceptive coverage, though he said during his confirmation hearing that he agrees “with the Griswold Court’s conclusion that marital privacy extends to contraception and the availability of that.” Thomas and Alito, though, also said they agreed with Griswold during their confirmation hearings.
Justice Neil Gorsuch sided with Hobby Lobby and the Little Sisters of the Poor in their push to exclude birth control from coverage while he was still on the 10th Circuit Court of Appeals.
“All of us face the problem of complicity,” Gorsuch wrote in a concurring opinion in the Hobby Lobby case. “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”
Justice Amy Coney Barrett dodged questions on contraception during her hearing, saying just that it would be “unthinkable” for the legislature to pass a law taking away the right to use or buy contraception.
“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” she said.
