Republicans who oppose abortion have new talking points — birth control will remain easily available in the wake of the Supreme Court’s decision overturning the federal right to abortion, and when Democrats say otherwise, they are just trying to scare voters.
Variations on this claim were made by a series of Republicans on the House floor July 21 during debate on a bill that would add a right to contraception to federal law. Democrats advanced the bill as a way to ensure the availability of birth control before some abortion opponents have a chance to see whether the Supreme Court will overturn that right, too.
“This bill is completely unnecessary,” said Rep. Kat Cammack (R-Fla.), a co-chair of the Congressional Pro-Life Caucus. “In no way, shape, or form is access to contraception limited or at risk of being limited. The liberal majority is clearly trying to stoke fears and mislead the American people, once again, because in their minds stoking fear is clearly the only way that they can win.”
We reached out to Cammack’s office to inquire about the basis for this statement but did not receive a response.
Similar claims were made in the Senate as it declined to take up the House bill on July 27. “This idea that we ought to spend scarce time here in the Congress, which we have in limited supply, reaffirming rights that already exist is a clear political narrative designed to divert the American people’s attention from things that really are at risk,” said Sen. John Cornyn (R-Texas).
However, a review of documents and current efforts in some states to change laws indicates there is significant evidence that birth control — or at least some forms of it — may be at risk legally. So we dug in.
At the Supreme Court
The cornerstone for this concern can be found in Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade‘s guarantee of access to abortion. Thomas suggested that having found no constitutional right to abortion, the court should next “reconsider all of this court’s substantive due process precedents, including Griswold.” That is a reference to Griswold v. Connecticut, the 1965 case that established a right for married couples to use contraception (single people were granted that right in a separate case in 1972). In Griswold, the court found that the “due process” clause of the 14th Amendment protects the right to privacy.
True, Thomas represents only one vote on the court, and the number of his fellow justices who share his opinion that the birth control case should be reversed is unclear. But the Supreme Court has already allowed some employers to decline to offer their workers contraceptive coverage based on their opposition to abortion. At issue in the 2014 Hobby Lobby case was the religious belief of the owners of the craft store chain that some forms of contraception — including the “morning-after” pill and two types of intrauterine devices — could produce early abortions by preventing the implantation of a fertilized egg. The court decided the government could not force the contraceptive coverage requirement from the Affordable Care Act on employers with those beliefs.
Scientific evidence suggests that neither the morning-after pill (which is a higher dose of a hormone used in regular birth control pills) nor IUDs stop the implantation of a fertilized egg and therefore do not cause abortions. Still, the court ruled that the owners’ religious beliefs trumped the government’s interest in workers getting contraceptive coverage.
“That legal blurring of distinct scientific boundaries between abortion and birth control threatens contraceptive access in the United States,” wrote professors Rachel VanSickle-Ward and Kevin Wallsten in The Washington Post. They predicted that some states “will probably ban some forms of contraception outright, using the discredited idea that contraceptives act as abortifacients.”
Confusion about how some forms of contraception work has led to efforts in several states to ban certain types of birth control. The most frequently targeted form of birth control is the morning-after pill, which can prevent pregnancy if taken within a few days of unprotected sex but which cannot interrupt an established pregnancy. It is not the same as the abortion pill, a regimen of two other medications that do end a pregnancy up to 10 weeks of gestation.
And even if the birth control methods did prevent a fertilized egg from implanting in a woman’s uterus, that would not be an abortion, at least not according to the medical community. Although many religious groups and abortion opponents argue that human life begins when the egg is fertilized, there is a consensus among doctors, scientists, and legal experts that pregnancy begins at implantation. And, they point out, an abortion is the termination of a pregnancy. Roughly half of all fertilized eggs never implant.
Even before Roe was overturned, lawmakers in Idaho called for hearings to ban emergency contraception, and Missouri lawmakers tried to bar Medicaid from paying for the morning-after pill and IUDs.
Anti-abortion groups are pushing the idea. “Plan B is Capable of Causing an Early Abortion,” said a fact sheet from Students for Life of America, referring to the name of a brand of the morning-after pill. Model legislation from the National Right to Life Committee would ban abortion from the moment of fertilization, not implantation.
The bottom line, wrote professors VanSickle-Ward and Wallsten before the decision overturning Roe was even final, is that “the court doesn’t have to formally end legal protection for contraception use.”
“If it allows plaintiffs to call contraception abortion, and Dobbs ends legal protection for abortion, then contraception is at risk.”
It is true that, so far, no state has banned forms of contraception. But the threat appears very real. And the absolute nature of Cammack’s statement — saying there’s “no way, shape, or form” that access to contraception is at risk — is not accurate. We rate the statement False.
This article was reprinted from khn.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.