The Looming Threat of Contraception Restriction

On June 24, 2022, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization officially overturned Roe v. Wade and nearly 50 years of precedent on legal abortion. The decision sent shockwaves through much of the country, denying abortion as a constitutional right and giving authority to regulate it to the states. According to the Center for Reproductive Rights, the Dobbs decision “marks the first time in history that the Supreme Court has taken away a fundamental right.”

Unfortunately, other reproductive rights that were once considered fundamental could also be dismantled. With anticontraception rhetoric, court decisions, and policy measures picking up steam, an important question is gaining attention and concern: Could contraception ultimately go down the same path as abortion? And, will highly contested forms of birth control—such as intrauterine devices (more commonly known as IUDs) and emergency birth control pills—remain accessible throughout the United States?

The Health Risks of Reproductive Restrictions

Reproductive restrictions are not only about women and birthing people’s loss of reproductive rights, bodily integrity, and reproductive autonomy, they are also a salient health issue. States that carry the harshest reproductive restrictions, such as abortion bans, also have increased rates of infant and maternal mortality, as well as increased anxiety and depression among women. There are also socioeconomic repercussions for abortion bans; evidence demonstrates that abortion restriction weakens economies by forcing women out of the workforce.

Could contraception ultimately go down the same path as abortion?

If contraception restrictions were to gain traction in the United States, the consequences could be even more devastating. According to the American College of Obstetricians and Gynecologists 2022 Committee on Health Care for Underserved Women, the benefits of contraception in the United States and beyond include “improved health and well-being, reduced global maternal mortality, health benefits of pregnancy spacing for maternal and child health, female engagement in the work force, and economic self-sufficiency for women.”

The committee also pointed out that contraceptives carry benefits that aren’t tied to family planning and maternal health, which consist of “decreased bleeding and pain with menstrual periods and reduced risk of gynecologic disorders [such as endometrial and ovarian cancer].”

A Larger Fight over Contraception

Several experts have argued that wide-scale political shifts that might cement anticontraception sentiments into national policy are unlikely, especially considering the backlash surrounding the overturning of Roe and concerns that bans on some forms of contraception may also ban in vitro fertilization (IVF) treatments. However, reproductive rights activists warn that the fight against contraception, like the fight to overturn Roe, could be a protracted one. On numerous legislative and policy fronts, a larger battle over contraception is beginning to take shape:

• The Dobbs Decision

According to the Kaiser Family Foundation (KFF), the Dobbs decision, which effectively ended the right to an abortion and left room for states to restrict access to abortion care, also infers that such restrictions could be in store for contraception. In “The Right to Contraception: State and Federal Actions, Misinformation, and the Courts,” KFF states: “While the Court’s majority opinion stated that the Dobbs decision does not ‘cast doubt on precedents that do not concern abortion,’ Justice Thomas argued in his concurring opinion that in future cases, the Supreme Court should reconsider precedent that relied on the same principles as Roe—including Griswold v. Connecticut.”

Griswold, which was decided in 1965, essentially protects “a person’s ability to access contraceptives and to engage in contraception” while simultaneously protecting healthcare providers’ ability to offer contraceptives to their patients. The very notion that the Griswold decision could be overturned prompted some state legislatures—including Minnesota, New Mexico, and the District of Columbia—to spearhead measures that shield access to contraceptives.

• Contraception-Limiting Laws in Texas

There are, in fact, some laws limiting access to contraception that are already being enforced. Currently, under Title X, young women and teens are permitted to obtain contraceptives without parental consent. However, the permissions available through Title X have come under fire in Texas where, according to TIME, the Court of Appeals for the Fifth Circuit found that “the Texas family code, which requires parental consent for medical treatment provided to a child, should apply.” Therefore, despite Title X being enshrined in national law, the state law stands, and Texas minors must have parental permission to access birth control.

Though the circumstances that allowed for this decision are unique to Texas, that might not be the case for long. As Amy Myrick, a senior attorney at the Center for Reproductive Rights, told TIME, the Deanda case, which challenged Title X in Texas, “was kind of unique because Texas has a uniquely restrictive law that generally requires parental consent for any kind of medical or dental care for minors.…So far, no other states have the equivalent law. But now that states have Deanda on their radar, we expect more legislative efforts to pass those kinds of laws.”

• Reclassifying Forms of Birth Control

Several forms of hormonal birth control that provide emergency contraception are often confused or conflated with abortion though the medical evidence is clear that these medications don’t function that way. These forms of birth control, which include IUDs and the Plan B pill, have been challenged in courts on these grounds.

For instance, in Burwell v. Hobby Lobby Stores, the retailer Hobby Lobby sued the Obama administration on the grounds that the Patient Protection and Affordable Care Act included contraception (such as emergency contraception pills like Plan B and IUDs) that Hobby Lobby believed to be “abortifacients” and therefore in violation with the store ownership’s religious beliefs against abortion. In his majority decision, Justice Alito wrote that, since the Religious Freedom Restoration Act of 1993 applied to the case, “we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do.” This case set a significant precedent in allowing individuals and organizations who object to abortion on religious grounds to expand the very definition of abortion.

The Comstock Act provides another potential loophole by which emergency contraception could be made illegal. The 1873 act makes it illegal to use postal carriers to mail “obscene” materials such as drugs that induce abortions—and is still in effect today. According to KFF, “Anti-abortion organizations have asked federal courts to interpret the Comstock Act as a ban on the mailing and distribution of [medical abortion drug] mifepristone.” However, as what constitutes an abortion continues to be called into question, it is conceivable that the Comstock Act could also be used to stop the distribution of emergency contraception.

• The Battle over Mifepristone

Unlike the claims against IUDs and emergency contraception, mifepristone is used for medical abortion, and its legality has come under scrutiny because of its function. According to the Food & Drug Administration (FDA), mifepristone is a medication that, when paired with the drug misoprostol, can be used to “end an intrauterine pregnancy through ten weeks gestation.” After a fairly protracted battle over its use in the United States, according to the Reproductive Health Access Project, mifepristone was “approved for medication abortion on September 28, 2000, twelve years after its original synthesis.” However, in the recent Supreme Court case Food and Drug Administration v. Alliance for Hippocratic Medicine, doctors and medical groups challenged the FDA’s initial approval of mifepristone as well as subsequent expansions in access to the drug made in 2016 and 2021.

While the court ultimately decided that the plaintiffs of the case “lack standing” to challenge the actions of the FDA, according to SCOTUSblog, the court “did not rule on whether the FDA acted properly in expanding access to mifepristone.” As Nancy Northrup, the president and CEO of the Center for Reproductive Rights told SCOTUSblog, the dispute over mifepristone is likely to continue, making access to the drug “still at risk nationwide.”

Further, the Chevron doctrine—which stipulated that “courts must defer to a regulatory agency’s interpretation of ambiguous laws as long as the interpretation is reasonable”—has now been overruled, meaning the FDA’s ability to determine the safety of birth control drugs (including but not limited to drugs that are used in medical abortion) could come back into question.

• Project 2025’s Anticontraception Position

The conservative policy agenda document, Project 2025, is unabashedly and unequivocally against the right to abortion and critical of the relationship between reproductive rights and health.

In a section on “The General Welfare,” the authors of Project 2025’s Mandate for Leadership: The Conservative Promise call on the Department of Health and Human Services (DHHS) to “pursue a robust agenda to protect the fundamental right to life,” and complain that the current DHHS “pushes abortion as a form of ‘health care.’” Roger Severino, a former Trump appointee who once served as the director of the Office for Civil Rights, argues that the “FDA should…reverse its approval of chemical abortion drugs because the politicized approval process was illegal from the start.”

According to Mother Jones, of the many potential abuses to personal liberty, civil rights and fairness laid out in Project 2025, the document also “proposes revved-up prosecutions of persons providing or distributing abortion pills by mail.”

“Roe was not toppled in a day.”

Though the Heritage Foundation’s Mandate for Leadership is technically not affiliated with any political party, the documents’ authors have deep political ties. And even though, according to the Washington Post, Project 2025 “is winding down its policy operations” and its director is leaving the organization, the objectives spelled out in the document should be taken seriously. Additionally, though contraception isn’t specifically mentioned, pro-life arguments that emergency contraception is a form of abortion could pave the way for restrictions on IUDs and emergency birth control pills, and beyond.

As these developments make clear, reproductive rights exceed the right to abortion without prosecution; they involve being able to access any procedure, product, or medical service needed for women to have command over their reproduction, their menstruation, and by extension, their lives. Any breach of these rights gives others the right to make these decisions for women and their families.

Attending to the “Slow Creep”

As a nation, if we continue to chip away at our reproductive freedoms, we will inherently move further down the path of reproductive coercion and control.As the dominos begin to fall against the free and unfettered right to access contraception, activists and advocates should be proactive. As Jill Filipovic states in the TIMES, “At a time when abortion bans are already removing women’s control of their lives and bodies, the slow creep toward contraception restriction demands our attention now. Because as those same advocates note, Roe was not toppled in a day.”

While a few states have taken proactive steps to safeguard access to contraception, more needs to be done to ensure the right to contraception remains without restriction. Additionally, the HIPAA Privacy Rule to Support Reproductive Health Care Privacy—which protects people’s medical history against criminal prosecution for receiving or aiding in abortion care—is another step in the right direction, but only time will tell how well it holds up against legal challenges.

As a nation, if we continue to chip away at our reproductive freedoms, we will inherently move further down the path of reproductive coercion and control. In our current post-Roe reality, we must not only fight to reclaim abortion care, but to safeguard all areas of reproductive health and wellbeing, including access to all forms of contraception.