Isabella Carter
The right to contraception is a contentious issue in the United States, with a history of legal challenges and varying state-level restrictions. The Supreme Court's recent decision to overturn Roe v. Wade has brought into question other rights founded on the principle of privacy, including the freedom to use contraception. While the federal constitutional right to contraception has been recognized by the Supreme Court in landmark cases like Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), ensuring access to contraceptives for rape survivors remains a challenge. Some states have excluded emergency contraceptives from Medicaid coverage or stopped providing them through victim compensation programs, impacting survivors' ability to prevent pregnancy after sexual assault. This issue highlights the ongoing debate and legal complexities surrounding contraceptive access in the United States.
| Characteristics | Values |
|---|---|
| Constitutional right to contraception | Recognized by the U.S. Supreme Court in Griswold v. Connecticut in 1965 |
| Landmark Supreme Court decisions | Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) |
| States that have passed laws or constitutional amendments to secure the right to contraception | California, Michigan, and Vermont |
| States attempting to restrict access to contraception | Texas, Missouri, Iowa |
| Constitutional right to privacy | The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization has called this into question |
| Constitutional protections | The Violence Against Women Act of 1994 |
| Constitutional right to marital privacy | The Supreme Court recognized this in Griswold v. Connecticut |
| Constitutional right to contraception for unmarried individuals | The Supreme Court extended this in Eisenstadt v. Baird |
| Emergency contraceptives | EC pills, or the "morning-after pill," can prevent pregnancy after unprotected intercourse, including rape |
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What You'll Learn
The constitutional right to privacy
The right to privacy in the US Constitution has been interpreted to include a right to contraception. The Supreme Court first made clear that the US Constitution protects a right to contraception in Griswold v. Connecticut in 1965. In this case, the Court found that the use of birth control by married people falls “within the zone of privacy created by several fundamental constitutional guarantees”. The Court also determined that a Massachusetts law that prohibited dispensing birth control to unmarried people was unconstitutional.
The right to privacy, in this case, is older than the Bill of Rights, the political parties, and the school system. This right has been repeatedly reaffirmed by the Court and relied upon by people across the country for decades. It has allowed people to choose if and when to become pregnant, and to structure many parts of their lives, including their education and career.
However, this right is now under threat. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which declared that the Constitution does not protect the right to abortion, has emboldened efforts to restrict the right to contraception. Lawmakers in some states have indicated a willingness to introduce bills banning emergency contraception and/or intrauterine devices (IUDs).
In response, the Biden Administration has issued an executive order to protect and improve access to contraception. Voters in California, Michigan, and Vermont have also approved ballot measures that established a state right to reproductive freedom or reproductive liberty, including the right to contraception.
The issue of providing emergency contraception to rape survivors is a complex one. While emergency contraceptive (EC) pills can prevent pregnancy after rape, many emergency care facilities fail to provide EC to women who have been raped, or even inform them that it is available. This leaves these women at risk of becoming pregnant.
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The separation of state and federal laws
At the federal level, the right to contraception has been recognised as a constitutional right by the Supreme Court in landmark cases such as Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). These decisions affirmed that the constitutional right to privacy includes the right of individuals, regardless of marital status, to obtain contraceptives. The Violence Against Women Act of 1994 further demonstrated federal support for protecting women's rights and addressing violence, including rape.
However, the separation of state and federal laws has allowed for significant variation in contraceptive access across different states. Prior to the Griswold decision, many states outlawed contraceptives, prohibiting their prescription and discussion by healthcare professionals. Even after Griswold, some states continued to restrict access for unmarried individuals, leading to the Eisenstadt decision, which extended protections to all.
In recent years, several states have passed laws or constitutional amendments to secure the right to contraception for their residents. For example, California, Michigan, and Vermont have enshrined the right to reproductive freedom, including contraception, in state law or their state constitution. These state-level actions reflect a commitment to protecting contraceptive access, often in response to concerns about potential restrictions at the federal level.
On the other hand, some states have taken steps to restrict contraceptive access. For instance, Texas, with permission from the Trump Administration, excluded emergency contraceptives from its Medicaid-funded family planning program. Similarly, Missouri attempted to bar coverage of emergency contraceptives from its Medicaid program, and Iowa stopped paying for Plan B for survivors of sexual assault through its Crime Victim Compensation Program. These actions highlight how state laws can significantly impact access to contraception, even when federal protections exist.
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The Supreme Court's interpretation of the right to privacy
However, the fight for equal access continued, as some states maintained restrictions for unmarried individuals. This led to the Eisenstadt v. Baird case in 1972, where the Supreme Court extended the right to privacy to unmarried people, striking down laws that prohibited dispensing birth control to this demographic. The Court's interpretation of privacy in this context centred on the idea of a "zone of privacy" protected by fundamental constitutional guarantees, ensuring that individuals could make decisions about their reproductive health without government interference.
Despite these landmark decisions, the right to contraception remains under threat. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, has emboldened efforts to restrict contraception access. This shift in the Court's interpretation of privacy rights has sparked concerns about the potential erosion of other privacy-based rights, including gay sex, same-sex marriage, interracial marriage, and the freedom to use contraception.
In response to these concerns, Congress and states have taken steps to protect reproductive rights. The Biden Administration issued an executive order in 2023, reaffirming its commitment to protecting and improving access to contraception. Additionally, voters in California, Michigan, and Vermont have approved ballot measures enshrining reproductive freedom, reproductive liberty, and personal reproductive autonomy, respectively, which can be interpreted to include the right to birth control.
While the Supreme Court's interpretation of the right to privacy has expanded over time, ongoing legal challenges and shifting political landscapes continue to shape the landscape of reproductive rights in the United States. The interplay between federal and state laws further complicates the interpretation and enforcement of privacy rights, particularly regarding access to contraception.
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The role of the Biden administration in protecting access to contraception
The Biden administration has played an active role in protecting access to contraception, particularly in the aftermath of the Supreme Court's decision to overturn Roe v. Wade. This ruling raised concerns about potential restrictions on birth control and other rights based on privacy, such as gay sex, same-sex marriage, and interracial marriage. In response, President Biden issued an executive order to safeguard and enhance access to contraception.
The executive order directs federal agencies, including the Department of Health and Human Services (HHS), to undertake actions that promote access to reproductive health care services, including contraception. This involves considering guidance for private health insurers to fully cover contraceptives without additional costs and exploring options for Medicaid to expand low-cost family planning services. The Biden administration has also proposed a rule to expand coverage of affordable contraception under the Affordable Care Act, aiming to reduce out-of-pocket costs for individuals.
Additionally, the Biden-Harris administration has strengthened contraception access and affordability through various avenues, such as Medicare, Medicaid, the Title X Family Planning Program, federally qualified health centers, and coverage for federal employees. They have also focused on enhancing access for college students by convening institutions of higher education to share best practices and improve understanding of contraception options.
While these actions by the Biden administration provide a roadmap for protecting reproductive rights, they are limited in their scope. Only congressional action can ensure nationwide access to contraception and other reproductive health services. However, given political realities and other pressing priorities, such legislative action is not expected to occur in the near future. As a result, the Biden administration's executive order and associated policies offer a patchwork solution to mitigate the impact of the Dobbs decision.
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The impact of the Dobbs decision on state laws
The Dobbs decision, or the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, has had a significant impact on state laws and abortion rights. The decision reviewed the constitutionality of Mississippi's Gestational Age Act, which banned most abortions after 15 weeks of pregnancy. The Court upheld the Mississippi law and overturned Roe v. Wade, the longstanding ruling that protected abortion rights.
The impact of the Dobbs decision was immediate and far-reaching. Several states introduced abortion restrictions or revived previous ones. At least six states had abortion-related ballot initiatives in response to Dobbs, with Kansas's referendum taking place on August 2, 2022. The backlash to the decision resulted in increased support for Democrats in special congressional races and a boost in voter registration, particularly among Democrats and female voters.
The midterm elections also reflected the influence of the Dobbs decision, with voters supporting abortion rights helping Democrats retain control of the Senate. State-level changes supporting abortion rights were enacted in five states, and resolutions in support of abortion rights passed in seven more states in 2024. The decision also impacted public opinion, with an estimated 25% increase in voters leaning towards supporting abortion rights in the year following the ruling.
The Dobbs decision has also had indirect effects on other rights founded on the principle of privacy, such as gay sex, same-sex marriage, interracial marriage, and the freedom to use contraception. While Justice Samuel Alito stated that the opinion should not be interpreted as questioning these precedents, Justice Clarence Thomas explicitly called for the reconsideration of these constitutional rights. As a result, lawmakers in some states have indicated their willingness to introduce bills banning emergency contraception and intrauterine devices (IUDs).
In response to these developments, Senate Majority Leader Schumer has stated his intention to bring a bill to the Senate floor that would protect contraceptive access nationally. The Biden administration could also argue that the Food and Drug Administration's (FDA) existing ruling on contraception as safe and legal medication takes precedence over any state restrictions. This legal strategy, known as preemption, would allow the Department of Justice to intervene in states that attempt to limit access to contraception.
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Frequently asked questions
The right to contraception is a federal constitutional right that has been recognized by the U.S. Supreme Court, which guarantees legal access to birth control for everyone, regardless of marital status, gender, or age.
Contraceptives are methods or devices used to prevent pregnancy. They include intrauterine devices (IUDs), emergency contraceptive pills (EC), and regular birth control pills. EC pills, also known as the "morning-after pill," can prevent pregnancy if taken within 72 hours of unprotected intercourse and are most effective if taken within 12 hours. IUDs work by inhibiting ovulation or making it harder for sperm to reach an egg.
The right to contraception is currently under threat, with some states attempting to restrict access or defund emergency contraceptives. Many emergency care facilities do not offer rape survivors the treatment they need to prevent pregnancy, and some do not inform them that such treatment is available. Additionally, in some states, such as Texas and Iowa, there have been efforts to exclude emergency contraceptives from Medicaid-funded programs or crime victim compensation programs.
