The Right to Contraception: State and Federal Actions, Misinformation, and the Courts

Introduction

The Supreme Court’s Dobbs ruling has heightened interest in affirming the right to contraception. 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 Court should reconsider precedent that relied on the same principles as Roe – including Griswold v. Connecticut, the Court’s 1965 landmark decision that recognized the right of married people to obtain contraceptives – and overturn those decisions. The prospect of the Court overturning Griswold moved some in Congress to introduce federal legislation that would protect the right to contraception, though that legislation is unlikely to advance in the current divided Congress. Similarly, some state legislators have recently introduced measures to protect the right to obtain contraceptives.

However, even with the current constitutional protections of Griswold in place, uncertainty has emerged around people’s ability to access certain contraceptive methods, such as IUDs and emergency contraceptive pills (often confused with medication abortion), which are erroneously believed by many to be abortifacients. If, as the Supreme Court’s majority indicated, the basis for their reasoning hinges on whether “potential life” is involved in a law, the conflation of contraception with abortifacients could be the reasoning in a future case or in the application of certain laws. This issue brief explains how misinformation about contraceptives and how pregnancy is defined in state abortion bans may impact contraceptive access, and outlines the legal protections some states have established to affirm the right to obtain contraceptives.

Background

Supreme Court Decisions Recognizing the Right to Contraception

Currently, the right to contraception is protected by two landmark Supreme Court decisions, Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). In Griswold, the Court recognized that the constitutional right to privacy encompasses the right of married people to obtain contraceptives. Prior to the Griswold decision, many states outlawed contraceptives, prohibiting clinicians from prescribing, or even discussing, contraceptive methods with their patients. After the Griswold decision, some states continued to have these prohibitions for single people, only allowing married women to obtain contraceptives. These laws spurred the litigation that resulted in the High Court’s decision in Eisenstadt, where the Court extended the constitutional protections of Griswold to unmarried people.

Misconceptions about Emergency Contraceptives (EC) and IUDs

Although intrauterine devices (IUDs) and emergency contraceptives (EC) – such as Plan B, Ella, and the emergency application of IUDs – work by preventing pregnancy, many people mistakenly believe they are abortifacients and can end a pregnancy. Polls indicate that as many as 73% of people incorrectly think emergency contraceptive pills can end a pregnancy in its early stages. Additionally, some people wrongly believe that IUDs work primarily by preventing implantation of a fertilized egg on the uterine lining.  However, research has shown that these contraceptive methods work by inhibiting ovulation or by making it harder for sperm to reach an egg. Despite some common misconceptions, emergency contraceptive methods and regular use of the IUD do not terminate a pregnancy, stop the implantation of a fertilized egg, or affect a developing embryo.

Some Abortion Bans May be Interpreted to Limit Contraceptive Access

The definitions that abortion bans in some states employ, coupled with the misunderstanding that certain contraceptives are abortifacients, may be used to limit access to contraceptives. While leading medical organizations define pregnancy to begin at the implantation of a fertilized egg, a number of abortion bans define pregnancy to begin at fertilization and “fetus” and “unborn children” as living humans from fertilization until birth. The total abortion ban in Tennessee, for instance, defines pregnancy as the “reproductive condition of having a living unborn child within [the pregnant person’s] body throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.” If abortion bans establish that a pregnancy exists from the moment of fertilization, preventing the implantation of a fertilized egg could be construed as terminating a pregnancy. This kind of definition could potentially be used to ban or restrict contraceptive methods that people incorrectly believe to end a pregnancy.

For example, Missouri defines abortion to outlaw “[the] termination of the pregnancy of a mother by using or prescribing any instrument, device, medicine, drug, or other means or substance with an intention other than to increase the probability of a live birth or to remove a dead unborn child”. The ban additionally defines “unborn child” as “the offspring of human beings from the moment of conception” — which they define as fertilization — “until birth.”  The ban does not provide a definition for pregnancy, but instead establishes personhood for fertilized eggs, which could be interpreted as banning anything that prevents the implantation of a fertilized egg on the uterine lining, a possibility the state’s governor did not firmly deny in the immediate aftermath of the Dobbs decision. As a result, when the state’s abortion ban went into effect, a major hospital system in Missouri immediately stopped providing Plan B – an emergency contraceptive – out of fear of charges that could have resulted from a prosecutor’s misunderstanding of how Plan B works. The hospital system resumed providing the emergency contraceptive after the Attorney General’s office and the governor clarified that the ban did not affect Plan B. However, this situation demonstrates how the definitions included in abortion bans, which imply pregnancy starts at fertilization, coupled with misunderstandings of how contraceptives work, could limit access to the full range of contraceptive methods.

Currently, most other abortion bans that define pregnancy to begin at fertilization also limit the definition of abortion to providing procedures or medication to people “known to be pregnant” or with “clinically diagnosable pregnancies”. This definition of abortion would preclude these bans from being used to limit contraceptives. This is because contraceptives – emergency or otherwise – do not end an existing pregnancy and emergency contraceptives are only effective up to 5 days after intercourse, while the earliest a pregnancy can be clinically confirmed is approximately 10 to 11 days after fertilization. Even with a misunderstanding of how contraceptives work, these bans do not affect conduct prior to the time when a pregnancy can be confirmed. Additionally, the abortion bans in a few states explicitly clarify that they do not prevent the prescription, sale, or transfer of birth control devices and oral contraceptives.

Notably this issue has come up in the 2023 race for Kentucky Governor. In a questionnaire from a state anti-abortion organization, one Republican contender indicated his support for fetal personhood, and prohibiting public funds for abortion with a definition that included contraceptive methods such as the “morning after pill,” Norplant, Depo Provera and the so-called “standard birth control pill.”  While the definition was provided by the anti-abortion organization, not the candidate, it illustrates the lack of understanding of contraceptive mechanisms of action and fails to distinguish between a drug or device that prevents pregnancy and those that are used to terminate a pregnancy.

State Protections for the Right to Contraception

Thirteen states – California, Colorado, Florida, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington – and D.C. currently have legal or constitutional protections for the right to contraception. A number of these protections have been enacted since the Supreme Court’s decision in Dobbs in June 2022 as a legislative response to the fall of Roe.  In California, Michigan, and Vermont, voters passed constitutional amendments through ballot measures in the November 2022 election recognizing a broad right to reproductive autonomy, which includes the right to use or refuse contraceptives. In these states, the right to reproductive autonomy also includes the right to abortion and sterilization. In addition to the three states that had constitutional amendments in the November 2022 ballot, the legislatures in D.C., Minnesota, and New Mexico have enacted laws protecting contraception since June 2022.

Although a number of the protections for contraception were enacted post-Dobbs, more than half of the states that have such protections instituted them before June 2022. Most of these laws – including those in Colorado, Illinois, Massachusetts, New Jersey, Rhode Island, and Vermont – were passed in the years leading up to the fall of Roe. Of the states that currently protect the right to contraception, all but three enacted these protections after 2019. The states of Oregon, Washington, and Florida had enacted their laws protecting contraceptives in 2007, 1991, and 1972, respectively.

Most laws protecting the right to contraception also protect a broader set of reproductive health care decisions, such as miscarriage management, maternity care, and assisted reproduction. Some states, such as Florida and Oregon, however, have more specific laws protecting the right to contraception. Oregon has separate protections for emergency contraception, voluntary sterilization, and termination of pregnancy. In fact, Florida is the only state with a statutory right to contraception that also has passed abortion bans, with a 15-week LMP (last menstrual period) ban in effect and a 6-week LMP ban that may be implemented pending the outcome of litigation.

Much like any other legal protection, enshrining these rights in the state constitution creates stronger and more stable protection than simply enacting laws, which can be repealed with a change in party control of the state legislature or Governor. In contrast, a constitutional amendment that explicitly protects the right to contraception, or reproductive autonomy more broadly, is harder to change or repeal.

Proposed State Bills and Constitutional Amendments

Legislators in several states have introduced bills and proposed constitutional amendment ballot measures to protect the right to contraception. Legislators in Hawai’i, Nevada, Maine, and Maryland proposed constitutional amendments to create protections for contraception. These measures failed in Hawai’i and Maine but passed in Maryland and Nevada. Maryland’s proposed constitutional amendment will be on the November 2024 ballot. In Nevada, constitutional measures must pass twice in the legislature before they are placed on a ballot and the earliest it may be listed on the ballot is November 2026.

In Ohio, a group of advocates submitted a citizen-initiated proposed constitutional amendment that would protect reproductive decisions, including those regarding contraception, fertility treatment, and abortion. The proposed amendment was certified by the Attorney General and the petition garnered sufficient signatures to be placed on the November 2023 ballot. In Montana, New Hampshire, North Carolina, Virginia, and Wisconsin, bills protecting the right to contraception were introduced, but they have not yet received a vote in Wisconsin or North Carolina, and have stalled in Montana, New Hampshire, and Virginia.

Federal Response

At the federal level, the Right to Contraception Act was introduced in the House and the Senate in the weeks after the Supreme Court issued the Dobbs decision, The House passed the bill shortly after it was introduced, but it did not receive a vote in the Senate due to a lack of the necessary votes needed to end a filibuster. The Right to Contraception Act was reintroduced in the House of Representatives in June 2023, but it does not have sufficient support to pass in the House or end the filibuster in the Senate at this time.

Additionally, in the months following the Dobbs decision, President Biden issued two executive orders aiming to protect access to reproductive health care services, including contraceptives.  While the executive orders do not specifically address the “right” to contraception, they call on federal agencies and regulators to assure that access to contraceptive services and supplies is broad and unimpeded by barriers related to costs, coverage, availability, and other factors. For example, in July 2022, under the directive of one of these executive orders, the U.S. Department of Health and Human Services issued guidance reminding retail pharmacies of their obligations under federal civil rights law. Specifically, the guidance pointed out that “if [a] pharmacy otherwise provides contraceptives (e.g., external and internal condoms) but refuses to fill a certain type of contraceptive because it may prevent pregnancy, the pharmacy may be discriminating on the basis of sex.”

Looking Ahead

Justice Thomas’ concurrence in the Dobbs case has brought renewed attention to the potential vulnerability of the Griswold and Eisenstadt decisions. In response, legislative bodies at the state and federal level have debated, and in some cases enacted, protections for contraception. However, except for Florida, none of the states with abortion bans in place have protected the right to use or obtain contraception. The remaining states that ban or severely restrict access to abortion do not have state level protections for contraceptives, leaving access to some methods potentially vulnerable to future attempts to limit them.

Unless the Supreme Court were to overturn Griswold and Eisenstadt, the right to obtain contraceptives will remain unchanged throughout the United States. However, fundamental misunderstandings regarding how contraceptives work – particularly how IUDs and emergency contraceptive pills operate – present a situation in which legislators and regulatory agencies might conflate abortion and contraception, potentially restricting people’s ability to access these methods in some states. Whether state legislative action or future court rulings will limit contraceptive access and the right to obtain contraceptives is an open question. The landscape of reproductive rights and access to family planning services in the country is still shifting and settling in the aftermath of the Supreme Court’s reversal of Roe.