Woman must wake up to the risk of losing access to contraception

 We need laws guaranteeing access to birth control.

Echo opinion by Stephanie Gorton published in the Boston Globe  

The judiciary has betrayed American women on abortion — contraception could be next.

Margaret Sanger born September 14, 1879, Corning, New York, U.S.—died September 6, 1966, Tucson, Arizona was the founder of the birth control movement in the United States

Amid the ongoing debates about abortion, birth control has appeared to be a reassuring constant.

Since it moved into the mainstream nearly a century ago, birth control has become a pillar of public health: In the United States, public expenditures on family planning exceed $2 billion annually. From condoms to Plan B to Opill, a birth control pill that became available over the counter just last year, easy access to birth control has long felt like a settled matter.

Except that certainty is illusory. There’s every indication that Trump’s second term will embolden abortion opponents to go after a variety of birth control methods. In fact, birth control is already under attack by elected officials across the country who’ve deluged the public with misinformation.

In 2022, House Representative Lauren Boebert repeatedly introduced amendments during the federal-funding appropriations process that aimed to prevent “abortifacient contraceptive drugs,” namely emergency contraception and IUDs, from receiving federal funding. Another member of Congress, Matt Rosendale, introduced a bill with a similar goal. Neither was successful, but Boebert was reelected last month to a House now under Republican control and her position is unchanged.

Separately, Student Health Services at the University of Idaho ceased providing birth control in September 2022, citing legal concerns raised by the state’s near-total abortion ban.

Representative Debbie Lasko, Representative Marjorie Taylor Greene, and House Speaker Mike Johnson have falsely described the “morning-after” pill as a “chemical abortion pill.” 

In the 2023, Kentucky gubernatorial race, candidate Daniel Cameron went even further, asserting he would refuse to use public funds not just for abortion but also for contraception, including Norplant, Depo Provera, and daily birth control pills. 

This cluster of anti-contraception efforts reflects how broad the ant

i-reproductive rights movement has become — and how little science matters to the discourse.

The abortion rights movement fears the next administration will resurrect the Comstock Act, an 1873 law that criminalized mailing information relating to birth control, sex education, and abortion. The law has been amended over the years, and if enforced today, it would only apply to drugs used in abortions, not to birth control. However, abortion opponents are attempting to miscast emergency contraception and IUDs as abortion methods, which they hope will result in a chilling effect both on physicians prescribing those contraceptive methods and on patients seeking them.

Misinformation is rife, especially when it comes to how birth control works. According to the 2023 KFF Health Tracking Poll, up to 73 percent of Americans believe Plan B works by ending an existing pregnancy and IUDs work by preventing fertilized eggs from implanting. 

Neither statement is accurate: Plan B prevents or delays ovulation, and IUDs prevent fertilization.

If birth control’s legal standing were rock solid, perhaps the misinformation would be less alarming. But it is, in fact, legally vulnerable: Justice Clarence Thomas pointed out the inevitability of attacks on contraception in his concurring opinion on Dobbs v. Jackson Women’s Health, the 2022 ruling that overturned Roe v. Wade. He cited “a duty to ‘correct the error’ established in those precedents,” the precedents being Griswold v. Connecticut, the 1965 decision that established a federal right to birth control, and Obergefell v. Hodges, the 2015 decision that legalized gay marriage. There is currently no case scheduled to go before the Supreme Court that could reverse Griswold, but Thomas’s remarks made his opinion on the matter clear — and they highlight birth control’s uncomfortably fragile legal status.

The decisions legalizing birth control and gay marriage, like Roe, centered on privacy. That is, the government may not interfere with personal decisions individuals make about their bodies. But in 2022, Dobbs effectively recategorized pregnancy: In the eyes of the court, it is no longer a private physiological event.

If the rationale behind Roe is invalid, Justice Thomas argued, the court has a duty to apply the same reversal to birth control and gay marriage, too.

Almost all other countries in Europe and North America guarantee access to contraception. The British and French governments passed laws legalizing birth control in 1967. (They also affirmed the right to legal abortion in 1967 and 1975 respectively.) Canada and Mexico have done the same. But in the United States, Congress has never affirmed the right to birth control. 

There have been efforts to make it happen, but the issue has become a partisan flashpoint: This past year, the Right to Contraception Act was twice rejected in the Senate, with arguments either calling the measure “completely unnecessary” or “a Trojan horse for more abortions.” Somehow it was both too unimportant and too threatening.

Why has the United States relied solely on the judiciary to guarantee rights like access to abortion, gay marriage, and contraception? 

The answer can be traced back to the 1920s and a little-known activist named Mary Ware Dennett.

Dennett first brought the issue of birth control to Washington in 1919 when she drafted a bill that would have legalized contraception. She envisioned a new law that would modify the Comstock Act, deleting its prohibition on birth control. Dennett spent five years doggedly trawling Congress for a sympathetic sponsor.

For the most part, she met with hostility. While she occasionally had a good meeting, she also endured mockery and rage. The response of Senator Thaddeus Caraway of Arkansas was typical: “If you want to make everybody prostitutes, then go ahead.” Dennett’s bill was introduced several times but never made it to a vote.

Dennett bowed out in 1924, broke and discouraged, and Margaret Sanger launched her own lobbying effort. Sanger’s bill was narrower. In order to win physicians’ support, Sanger restricted the birth control market to physicians only, giving doctors gatekeeping authority over their patients’ fertility. It was a pragmatic move, and Sanger’s bill actually passed in 1934 — before being recalled 15 minutes later. The campaign only found success once Sanger abandoned Congress and started working through the courts.

That fateful decision succeeded in the short term. A case orchestrated by Sanger, US v. One Package of Japanese Pessaries, gave physicians the right to prescribe birth control starting in 1936. In the immediate aftermath of the decision, Sanger wasn’t sure she had won. A court victory felt flimsy compared with a new federal law, and others, including Dennett, were skeptical it represented lasting change. Yet once she was confident the government wouldn’t appeal the case to the Supreme Court, Sanger proclaimed the legal decision “an emancipation proclamation to the motherhood of America.”
That shift from Congress to the courts also set reproductive rights on the course to the vulnerable legal status they occupy today. A federal law is far less likely to be rewritten than a judge’s decision is to be reinterpreted.

Stephanie Gorton lives in Providence, R.I., and is the author of “The Icon and the Idealist: Margaret Sanger, Mary Ware Dennett, and the Rivalry That Brought Birth Control to America.”

Consistent nationwide access to a range of options is vitally important. Long-term methods like the IUD provide protection from forced pregnancies for those trapped in coercive or abusive relationships, while the contraceptive pill can be transformative in regulating hormones and easing chronic pain.

Today, the opportunity for change is undoubtedly local. Only 14 states and Washington, D.C., have legal protections for birth control. Just 21 states require public-school sex education to include instruction on birth control.

Americans deserve laws that safeguard access to every kind of contraception. Anyone whose life has been shaped by access to contraception — or lack of access to it — has a stake in bolstering our right to birth control in the years ahead.

Stephanie Gorton lives in Providence, R.I., and is the author of “The Icon and the Idealist: Margaret Sanger, Mary Ware Dennett, and the Rivalry That Brought Birth Control to America.”