The fall of Roe v. Wade over the summer did more than change the landscape on abortion. It also left questions over other Supreme Court precedents and elements of reproductive health care like contraceptives in Republican-controlled states.
In the wake of the Dobbs v. Jackson Women’s Health decision, which reversed the constitutional right to an abortion, there was a large increase in demand for contraceptive measures, particularly longer-lasting measures like IUDs and vasectomies. There was also a flood of demand for emergency contraception, commonly known as Plan B, to stock up in case it became restricted by abortion bans.
Amid the uncertainty over reproductive health care, contraceptive advocates are seeking ways to make birth control and emergency contraception more accessible, protected and affordable.
In a concurring opinion to Dobbs, Justice Clarence Thomas wrote the court should reconsider other due process cases. He specifically listed Lawrence v. Texas, which ended bans on gay sex, Obergefell v. Hodges, which legalized same-sex marriage nationally, and Griswold v. Connecticut, a 1965 case that allowed married couples to buy and use contraceptives.
While the majority of the court went against Thomas and specifically said the Dobbs decision only applied to Roe, there was still concern over the future of contraception and LGBTQ rights in a conservative Supreme Court.
The concern has prompted legislative action from the federal government. President Joe Biden signed the Respect for Marriage Act into law early December. The bill requires states and the federal government to recognize marriages legally performed in other states, an important backstop if the Supreme Court does reverse Obergefell.
The efforts to increase accessibility of contraception, however, have stalled.
The U.S. House passed the Right to Contraception Act with eight Republicans joining House Democrats. The bill would establish a federal right for people to obtain and use contraceptives, and for health care providers to offer contraceptives. Senate Republicans blocked a unanimous consent request to pass the bill.
In addition to worries that a conservative Supreme Court will rule against contraception protections, vagueness in some state abortion bans like the trigger law in Texas have called the legality of emergency contraception into question.
Texas Attorney General Ken Paxton said in an advisory after Roe’s reversal that abortion is defined as “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant.” He added that this does not include birth control devices or oral contraceptives, but does not specify the legality of emergency contraception.
Texan Kami Geoffray, president of Geoffray Strategies, LLC, spoke during a webinar hosted by Kaiser Family Foundation, a nonprofit organization focused on health issues, on the specific challenges to contraceptive care in the state. She said she is largely concerned about attacks on emergency contraception that may be falsely classified as involving the use of abortion pills.
“There are some serious concerns about how far the Legislature in Texas and other states will go to redefine contraceptive methods as abortifacients,” Geoffray said. “The Dobbs decision makes it very disconcerting that a state legislature can define something as abortion or define life as they see fit, and regulate it.”
Geoffray said she hopes federal counterparts will work to clarify exactly what qualifies as contraception versus an abortion, and continue funding access to contraception drugs and devices.
Geoffray added that Texans often have barriers to accessing long-term contraceptive methods within the state due to lack of availability, objections by the provider or funding. She said as other states Texans may travel to invest in greater abortion access, it’s important to also look at holistic reproductive care, including contraception.
Texans are barred from using Medicaid to pay for contraceptive services at clinics associated with abortion services, like Planned Parenthood.
There are other programs that cover some costs of contraceptive care for Texans, but hold some limitations as well. For example the Family Planning Program covers a variety of birth control methods but not emergency contraception, which is accessible over the counter and without a prescription, but can be costly.
“I think the thing we can do most is create some education and advocacy opportunities around what contraceptive care is, how it benefits the public and continue to define contraception as not abortion but also work in concert with our folks in the abortion side because the same folks who need contraceptive care need abortion care,” Geoffray said.
In a survey on contraceptive services by KFF, affordability, accessibility, informational gaps and insurance coverage were some key barriers to getting and remaining on contraception.
“We need to be more deliberate in ensuring that people are able to access contraception in the ways they want to in a way that’s safe and timely,” said Sonya Borrero, chief medical and scientific adviser for the Department of Health and Human Services Office of Population Affairs.
Borrero joined other contraceptive care experts in a webinar to discuss the findings from the KFF survey, and also pointed to ways health care can change and innovate to be more accessible like telehealth or online birth control services, which saw an increase during the pandemic.
In another potential direction for contraception, a French pharmaceutical company sought FDA approval in July for the first over-the-counter birth control pill, which the KFF survey demonstrated was favored by a majority of women and oral birth control users. The approval process for the pill is still under review.
