Senators Michael Bennet (D-CO) and John Hickenlooper (D-CO), alongside others, have introduced the Right to Contraception Act, which would codify and strengthen the legal right to contraceptives.
“The freedom to decide when to start a family is fundamental,” said Hickenlooper in a news release. “This bill would protect access to all forms of birth control from any overreach by the Supreme Court.”
Since last year’s Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, a number of states have passed legislation to ban or restrict access to abortion, and four states — Arkansas, Mississippi, Missouri, and Texas — have moved to limit access to contraceptives. The Right to Contraception Act cites Supreme Court Justice Clarence Thomas’ concurring opinion in Dobbs, noting, “Justice Thomas, in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, stated that the Supreme Court ‘should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell’ and that the Court has ‘a duty to correct the error established in those precedents’ by overruling them.”
Bennet says this bill will prevent further erosion of reproductive rights by the Court. “Last year, the Supreme Court stripped away a fundamental right from the American people for the first time since Reconstruction and denied their individual liberty to make intensely personal choices about their health and futures,” he said in a news release. “As states across the country continue to restrict Americans’ access to reproductive health care, this bill would protect the right to access contraception.”
Since the Dobbs decision, liberal calls for Congress to increase the number of justices on the Supreme Court have increased. Both Bennet and Hickenlooper oppose expansion.
If passed, the bill would remove these already-existing state restrictions. Specifically, the Right to Contraception Act would guarantee the legal right for individuals to get and use contraception and for health care providers to provide contraceptives, contraception, and information, referrals, and services related to contraception. It would also prohibit the federal government or any state from administering, implementing, or enforcing any law, rule, regulation, standard or other provision that would prohibit or restrict the sale, provision, or use of contraception, and allow the Department of Justice, providers, and individuals harmed by restrictions on contraception access made unlawful under the legislation, to go to court to enforce these rights.
The Right to Contraception Act was also introduced and passed the House in 2022, but failed to advance in the Senate. Conservatives argued that the act was a violation of the First Amendment. While much of the focus of anti-abortion activists is on the act of abortion itself, many activists, such as those in the abortion abolition movement, oppose the use of hormonal birth control over claims that it is an abortifacient. Others oppose birth control due to firmly held religious beliefs, and both were involved in the 2014 Burwell v. Hobby Lobby decision, in which the Supreme Court ruled that certain employers can block their employees’ access to birth control, an exemption from the coverage guarantee under the Affordable Care Act.
