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).
The talks are still in their early stages. Days after the leak of a draft Supreme Court decision overturning Roe v. Wade, Brent Crane, a senior state lawmaker in Idaho, said publicly he wanted to hold hearings on 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 groups have indicated they would back legislation banning these birth control methods. 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 sweeping. IUDs are the most effective form of reversible birth control, and usage has increased dramatically in the past 10 years. About 1 in 10 people using birth control have an IUD, per the Centers for Disease Control and Prevention. Emergency contraception pills have grown similarly more widely used. Between 2013 and 2015, about 22 percent of women between the ages of 15 and 44 who have had sex reported using an emergency contraception pill at least once, per the Kaiser Family Foundation.
The right to contraception is protected by two Supreme Court cases: the landmark 1965 ruling in Griswold v. Connecticut, which found that married couples had the right to use birth control, and a subsequent 1972 ruling in a case known as Eisenstadt v. Baird, which extended that protection to unmarried people.
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. But even as Justice Samuel Alito wrote a draft opinion that would overturn Roe, he argued that it wouldn’t require gutting Griswold.
But even with Griswold intact, conservative legal minds have laid the groundwork to weaken 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 and emergency contraception, which make it harder for eggs to be fertilized but also can prevent fertilized eggs from implanting in the uterus, cause abortions. That view has no medical basis, note physicians and other reproductive health experts.
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. And that decision, legal scholars told The 19th, could now open the door for states to begin restricting access to contraception.
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 more tools at its disposal to challenge state laws banning these types of contraception than it does abortion access. “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 Lobby decision and a subsequent Supreme Court ruling — could be used to argue against state laws restricting contraceptive funding. The government could also argue that state contraception bans complicate efforts to administer the federal Title X program, which funds family planning clinics 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.”
In theory, the federal government is perhaps more likely to challenge contraception bans than abortion ones because of public perceptions, Van Sickle-Ward said. Abortion rights are fairly popular, but support can decline based on how bans are framed. 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.
But at the same time, she and others said, legal challenges launched by the federal government could still lose. The Hobby Lobby precedent creates an opening for courts to uphold contraceptive bans, especially given the rightward shift of the federal courts.
It’s not yet clear which states might pursue these kinds of contraceptive bans or when. The majority of state legislatures are part-time; most have finished their sessions for the year. And even many lawmakers who have passed legislation banning abortion “at fertilization” have been careful to include exemptions for birth control.
Even with Roe soon likely to be overturned, the politics of promoting such bans may be a tougher sell than abortion restrictions. Crane, the Idaho lawmaker backing bans on emergency contraception, said that he was unsure if he would also push for restrictions on IUDs. Last year, lawmakers in Missouri sought to block Medicaid coverage of IUDs and emergency contraception — but those efforts failed.
Still, the will is there. Many influential anti-abortion advocates have made clear that they support limiting access to IUDs and emergency contraception. Students for Life, a national organization that lobbies for abortion restrictions, has endorsed banning IUDs, emergency contraception, the pill and other types of hormonal birth control. National Right to Life, another major anti-abortion organization, officially does not take a position on contraception; but in a statement to 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. At a press conference last week, Sen. Patty Murray, a Democrat from Washington, argued that the threat to abortion rights extends to at least these two forms of contraception.
“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.
But Democrats have so far not offered any kind of legislative plan around maintaining access to either method of birth control.
“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.”