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If the Supreme Court undermines Roe v. Wade, contraception could be banned

Constitutional protections for birth control could be on shaky ground.

- December 10, 2021

Editors’ note: We are reposting this piece, originally published Dec. 11, 2021, in light of news that the Supreme Court is circulating a draft opinion that would overturn Roe v. Wade.

After last week’s U.S. Supreme Court oral arguments on Dobbs v. Jackson Women’s Health Organization, many observers noted that the justices are likely to undermine or overturn Roe v. Wade’s constitutional protections for abortion. Less broadly publicized is how the decision could also limit access to contraception.

Contraceptives came up frequently in the oral arguments. Mississippi’s Solicitor General Scott G. Stewart contended that the court needn’t worry about pregnancy’s burden on women because “contraception is more accessible and affordable and available than it was at the time of Roe or Casey. It serves the same goal of allowing women to decide if, when, and how many children to have.”

But as U.S. Solicitor General Elizabeth B. Prelogar pointed out, “about half the women who have unplanned pregnancies were on contraceptives” when they got pregnant. While contraception reduces the chance of pregnancy, it is not a foolproof alternative to abortion.

The Dobbs argument ignored “contraceptive deserts” and burdensome costs

But that’s not the only flaw in Stewart’s argument. Birth control has never been as affordable, easy and widespread in the U.S. as he suggests, according to our research. Take affordability. One of the most widely used forms of contraception — “the pill” — costs approximately $370 a year, the equivalent of 51 hours of minimum wage work. Not until the mid-1990s did state governments begin requiring health insurance plans to cover prescription contraceptives. That’s a major out-of-pocket cost for people who may have to put housing or food first.

Although the Affordable Care Act broadened insurance coverage for contraception, the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby and a 2017 Trump administration order limited that coverage by exempting employers and insurance providers who have objections based on “sincerely held religious beliefs.”

Nor is contraception always easy to get. In most states, women must first get a doctor’s prescription and then find a pharmacist who will fill it — which can be hard in rural areas or for those whose jobs and families give them little control over their time. Only 15 states allow pharmacists to prescribe birth control themselves. Six states allow pharmacists to refuse to dispense contraceptives altogether if they have religious or other conscience-based objections.

Overall, as a result of state-level differences in direct funding for family planning and Title X implementation, between 17 percent and 53 percent of Americans currently live in “contraceptive deserts” with inadequate and inequitable access to affordable reproductive health care. In other words, contraception cannot possibly be a meaningful substitute for access to abortion.

If the court topples Roe, it puts constitutional protections for birth control on shaky ground

But here’s the more important question: Will women still have access to birth control in a post-Roe world? The limits described above will likely expand, and some states will try to ban contraceptive access entirely.

There are two reasons for this. First, constitutional protections for abortion and birth control are linked. In Griswold v. Connecticut, the Supreme Court invalidated a law prohibiting birth control, arguing that the prohibition violated a fundamental “right to privacy.” This right to privacy is the foundation for Roe v. Wade.

Justice Sonia Sotomayor clearly had this precedent in mind during oral arguments for Dobbs, saying, “in Roe, the Court said … certain personal decisions that belong to individuals and the states can’t intrude on them. … We have recognized that sense of privacy in people’s choices about whether to use contraception or not.” If the court invalidates Roe v. Wade, contraception rights might be precarious as well.

The changing composition of the court, particularly the replacement of reproductive rights champion Ruth Bader Ginsburg with conservative Amy Coney Barrett, increases the chances that legal precedents related to contraception may be overturned. When asked during her confirmation hearing whether Griswold v. Connecticut was decided correctly, Barrett declined to answer on the grounds that a full ban on contraception at the state level was “unthinkable.” Barrett’s silence on Griswold, coupled with the court’s new conservative majority, sends the signal to state governments that more restrictive contraception policies might be welcomed.

Religious groups classify some forms of birth control as abortion

Further, in recent decisions, the court let religious groups argue that some forms of contraception are “abortifacients.” For instance, in the Hobby Lobby case, the company objected that four FDA-approved contraceptives prevented implantation of a fertilized egg — and that that counted as an abortion. More specifically, the company claimed that the owners’ “religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.”

The Little Sisters of the Poor, an organization of Roman Catholic nuns, challenged the paperwork requirements of religious exemptions under the Affordable Care Act, arguing that even signing the exemption forms constituted an endorsement of contraception and a violation of their religious tenets. In both of these cases, the court tacitly endorsed the plaintiffs’ conflation between birth control and abortion by not clearly distinguishing between the two in its rulings. This conflation has been subsequently echoed by Justice Samuel A Alito Jr. and in briefs submitted in Dobbs.

That legal blurring of distinct scientific boundaries between abortion and birth control threatens contraceptive access in the United States. Some state governments will listen to the Dobbs arguments and extrapolate from the Hobby Lobby and Little Sisters of the Poor decisions — and will probably ban some forms of contraception outright, using the discredited idea that contraceptives act as abortifacients.

In other words, 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.

Rachel VanSickle-Ward is a professor of political studies at Pitzer College. She is the co-author of “Politics of the Pill” (Oxford University Press, 2019).

Kevin Wallsten is a professor in the department of political science at California State University at Long Beach. He is the co-author of “Politics of the Pill” (Oxford University Press, 2019).