How American Women Could Lose the Right to Birth Control

16 minute read

When the U.S. Supreme Court issued its 1965 ruling in Griswold v. Connecticut and legalized the use of contraception by married women, the public response was muted. There is little evidence of an uproar on the pages of major newspapers or magazines. Even bringing the case was a challenge for reproductive-rights activists, who had tried and failed twice before to challenge Connecticut’s anti-obscenity law, which (fun fact) was introduced by P. T. Barnum in 1879 and (less fun) banned “any drug, medicinal article or instrument for the purpose of preventing conception.” By the 1960s, laws criminalizing contraception often went unenforced, which posed a problem for activists looking to challenge them. Without contraception-seeking patients who had actually been arrested, the Supreme Court said, there was no one with the standing to sue.

It wasn’t until Estelle Griswold, then the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton opened a birth-control clinic in well-advertised violation of Connecticut law that there was a contraception-rights case to take to the court. In Griswold, the court held that a constitutional right to sexual privacy protected the rights of married couples to use contraception. That right was used again to extend contraception rights to unmarried women, and then to enshrine a national right to abortion; later, it was a key argument in cases striking down bans on same-sex intercourse and same-sex marriage.

In 2022, the Supreme Court gutted it. In their Dobbs v. Jackson Women’s Health ruling, which overturned Roe v. Wade, the court’s majority called into question the very existence of a constitutional right to privacy. Instead, Justice Samuel Alito wrote in the majority opinion, the court would consider only rights explicitly outlined in the Constitution and “deeply rooted in the Nation’s history and tradition.” Abortion, the court determined, did not fit the bill, despite the fact that American women have been terminating pregnancies since the nation’s founding, and that the all-male Framers penned the Constitution in an era in which women did not have the right to participate in American democratic processes – but when, notably, early abortion was generally not criminalized.

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Now, the era of legal abortion in all 50 states is over, and the constitutional right to privacy may have dissolved along with it. And so the obvious question is, what’s next? Is contraception access also on the line?

Many activists, lawyers, historians, and politicians who favor abortion rights and contraception access say yes. The anti-abortion movement and many of the Republicans who represent it would generally prefer not to answer. More casual observers sometimes make an argument now darkly familiar to the abortion-rights activists who heard a similar claim pre-Dobbs: Feminists are being birth-control Chicken Littles; no one is coming for your contraception.

Even those who warn about impending attacks on contraception access generally agree that the Supreme Court is highly unlikely, at least in the immediate future, to overturn Griswold; particularly given the post-Dobbs backlash, the political will just isn’t there – nine in ten American women have used contraception, nearly all of them to prevent pregnancy. And yet we shouldn’t be lured into false comfort. At a time when abortion bans are already removing women’s control of their lives and bodies, the slow creep toward contraception restriction demands our attention now. Because as those same advocates note, Roe was not toppled in a day.

In 2020, conservative Christian Texas father Alexander Deanda filed a lawsuit over what he admitted was a nonissue: his underage daughters getting their hands on contraceptives without his permission. His daughters had not, he conceded, actually tried to go on birth control. But under the federally funded Title X family-planning program, young women are legally allowed to obtain it without parental consent. And this very possibility seemed to Deanda a violation of both his constitutional rights and his entitlements under Texas law. In March, the notoriously conservative Fifth Circuit Court of Appeals weighed in: Deanda lost on his constitutional claim, but he won on his argument that the Texas family code, which requires parental consent for medical treatment provided to a child, should apply. Despite a federal law ostensibly superseding state law and guaranteeing young women the right to access contraception without parental interference, minors in Texas now have to get their parents’ permission if they want birth control.

Deanda was kind of unique because Texas has a uniquely restrictive law that generally requires parental consent for any kind of medical or dental care for minors,” says Amy Myrick, a senior attorney at the Center for Reproductive Rights. “So far, no other states have the equivalent law. But now that states have Deanda on their radar, we expect more legislative efforts to pass those kinds of laws.”

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Importantly, the Deanda case was not one of a concerned father fighting a lonely battle. Deanda was represented by Jonathan Mitchell, an anti-abortion lawyer who devised the Texas six-week abortion ban that allowed anyone in the country to collect a reward for ratting out anyone who aids or abets someone in obtaining an abortion and who also recently represented former President Trump at the Supreme Court. That Mitchell chose a case intended to narrow the right to contraception, not just abortion, may be an important indicator of where his movement is headed, some abortion-rights advocates say.

And it suggests familiar tactics, too. “The strategy there is to say, ‘We’re not saying contraceptives are bad, we are saying parents have the right determine when their children can access contraception,’” says historian and UC Davis law professor Mary Ziegler, who has studied the anti-abortion movement. “The question is, why do parents need to be involved in some things rather than others? No one is arguing that parents need to consent when their children eat vegetables or star in the school play. The assumption is that parents need the extra layer of say-so whenever what they’re consenting to is problematic, so linked to that strategy is the argument that contraceptives are problematic.”

The strategy also seems to mirror the feels-like-common-sense parental-consent and -notification rules for abortion that states began putting into effect shortly after Roe was decided. In reality, these laws did little to increase parental communication in stable and supportive families. Instead, they made it near-impossible for some of the country’s most vulnerable teenagers to end unintended pregnancies – teens who couldn’t tell their parents because those parents were abusive, absent, controlling, or struggling with various disorders or dysfunctions. But even though Americans broadly support abortion rights, substantial numbers also favor parental-notification laws. That may well be why, since the 1970s, the anti-abortion movement has relied on parental consent and notification as a useful wedge issue. And it’s why, reproductive-rights advocates say, those who oppose contraception but know that Americans overwhelmingly favor it are beginning with parental consent.

The last major contraception case to go before the Supreme Court was 2014’s Burwell v. Hobby Lobby Stores, in which the Christian owners of the craft empire Hobby Lobby sued the Obama Administration over the contraception mandate of the Affordable Care Act (ACA). That mandate required that contraception be covered under employer-based group health plans. The Hobby Lobby owners argued that this violated their First Amendment rights, as well as the Religious Freedom Restoration Act, because they believe that some methods of contraception are in fact abortifacients.

The case was extraordinary in many ways, not least of which was the court’s willingness to set aside fact in favor of feeling. It didn’t matter that the scientific consensus was that the contraceptives in question, which included the IUD and the emergency contraceptive pill, were not abortifacients. What mattered is that the religious plaintiffs believed they were. That was enough for the court to hold that a private company did not have to abide by federal law on the basis of its owners’ scientifically inaccurate religious belief.

To some in the anti-abortion movement, the message was clear: by claiming that certain forms of contraception are tantamount to abortion, you can slowly expand the target while insisting that your focus is unchanged. For years they’ve backed pharmacists and emergency-room personnel refusing to provide emergency contraception, including to rape victims, on the grounds that such medications are abortifacients. Texas’s family-planning program bars funding from going to emergency contraception. And in Iowa, the anti-abortion Republican attorney general launched an audit last year into the program that pays for rape victims’ emergency contraception. “While not required by Iowa law, the victim compensation fund has previously paid for Plan B and abortions,” her press secretary said in a statement, lumping the two together. “As a part of her top-down, bottom-up audit of victim assistance, Attorney General Bird is carefully evaluating whether this is an appropriate use of public funds.” The funding has still not been restored.

Prominent anti-abortion activists, including several who have worked with Trump, have also been clear that they put contraception and abortion in the same category: “FYI, birth control can cause abortions and your doctor probably won't tell you that,” Students for Life president Kristan Hawkins tweeted last year (birth control cannot cause abortions). Her organization claims that it “does not take a stance on the morality of non-abortifacient contraceptives.” It does, however, oppose what it claims are “abortifacients,” a category into which it incorrectly groups the pill, the IUD, emergency contraception, and every other form of hormonal birth control.

The strategy seems to be a fairly straightforward one. If the most common and effective forms of contraception (the IUD is more than 99% effective) are redefined as abortion, then there’s no need for separate measures banning contraception; existing abortion bans may be enough to restrict access.

This redefinition of contraception as abortion could come into full force if Donald Trump wins the 2024 presidential election. Conservative groups have set out a detailed policy plan for his presidency, and part of that agenda is decreasing contraception access and encouraging methods like fertility awareness (24% failure rate). The Heritage Foundation’s Project 2025 urges Trump to expand religious and moral objections to the ACA’s contraception mandate and remove emergency contraception from the contraception mandate because they say it is a “potential abortifacient.”

Anti-abortion groups are also increasingly talking about the Comstock Act, an 1873 law that banned the mailing of materials related to contraception, abortion, and just about anything else censors deemed obscene. Its contraception ban is no longer in force, but the act remains on the books and, many abortion opponents believe, can be applied to materials related to abortion. “So if you believe IUDs are intended, designed, or adapted for producing abortion, if you believe they’re abortifacients, then it would be a federal crime to mail them or to receive them,” Ziegler says. This, she’s careful to note, isn’t her view of the law, but it may be what abortion opponents argue.

The anti-abortion movement is made up of many different groups that have varying opinions on contraception. Some are more aggressive in their anti-contraception stance, while others largely sidestep the issue or argue that it’s a politically inopportune time to raise it or any other aggressive and unpopular strategy (“I hope he doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” Mitchell, the Texas lawyer, told the Times, referring to Trump. “I think the pro-life groups should keep their mouths shut as much as possible until the election”). The question, then, isn’t whether blocking access to contraception is the movement consensus the way outlawing abortion has long been – it’s not – but which groups are the most powerful, and what they will push.

“There’s long been a pretty large and growing part of the anti-abortion movement that believes that nonmarital non-procreative sex is a problem in and of itself,” Ziegler says. “And I think that wing is more powerful than it would have been 10, 15, or 20 years ago. And the strategies are mostly the strategies you saw in the fight against Roe – the same kind of incremental strategy. The only difference is labeling contraception abortion – not even having it be a separate fight, just recategorizing contraception as abortifacients.”

Some in the anti-abortion movement agree. According to reporting in Mother Jones, activist and priest Frank Pavone, who sat on Trump’s Pro-Life Advisory Council, told an anti-abortion conference chat in 2022, “I can tell you that within the pro-life religious circles of pastors that I interact with, across denominational lines the awareness over recent years has greatly increased about how unbiblical contraception is.”

The “unbiblical” nature of contraception is not exactly a winning argument in an increasingly secular United States. But claims that contraception is physically harmful are effective, especially among health-conscious women of reproductive age, and in the wake of Dobbs, as people across the U.S. search for information on how to prevent pregnancy.

“We can see on our website the amount of searches for things that are related to birth control,” says Laura Riker, the director of organizing and advocacy for the Reproductive Health Access Project (RHAP). “To me that indicates an increased need and desire for information.” That need, she says, stems from abortion bans, which haven’t shuttered just abortion clinics, but many health centers that provided birth control, too, and have sent ob-gyns and other women’s health providers fleeing conservative states.

Without as many reliable in-person information sources, many Americans are turning to online ones, and often find themselves tromping through a jungle of conflicting information, much of it from self-styled health experts on social media. TikTok influencers make unfounded claims based on loose concepts of “wellness,” frequently warning young women away from contraception. Some conservatives are joining in, claiming falsely that IUDs harm women’s fertility, that contraception is “unnatural,” and that birth control somehow redirects women toward more feminine men.

Abortion opponents make these claims in an effort to stigmatize contraception and dissuade young women from using it, just as they have made similar claims about abortion over the years. The idea that abortion harms women was central to a case before the Supreme Court in 2007, over a federal law banning a particular abortion procedure. And the argument worked. Researchers have found that abortion does not pose significant mental or physical health risks, and that women who are refused abortions and forced to have children often face more serious mental-health consequences. Carrying a pregnancy to term is many times more dangerous than abortion. But in his majority opinion, Justice Anthony Kennedy nevertheless wrote, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

This strategy is back in play a decade and a half later as a group of anti-abortion doctors argue that mifepristone, an abortion-inducing drug, is unsafe for women, despite Food and Drug Administration’s (FDA) approval and decades on the market with an outstanding safety record. Their case – in which they also claim they would be forced to violate their strongly held beliefs in the extremely unlikely event that they needed to provide care to an abortion patient – made its way to the Supreme Court. And though the court appears likely to cite a lack of standing by the plaintiffs, Justice Alito seemed open to a future case in which they might find for the anti-abortion side. “Is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful,” he asked at oral arguments, “and maybe what they did was perfectly lawful, but shouldn’t somebody be able to challenge that in court?” If such a challenge were successful, it would open the door for any drug’s FDA approval to be potentially rolled back by the courts.

“If it turns out that the FDA can be second-guessed,” says Myrick, the Center for Reproductive Rights attorney, “even when there are decades of support that something is safe, then even the forms of contraception that we’ve already seen put at risk by fringe positions would get that same treatment.”

With the Dobbs decision already losing Republicans elections, the chances that abortion opponents will bring a major court challenge to Griswold and a national right to contraception are slim. The movement’s leaders are also tied up: State abortion bans remain mired in legal battles, and much of the movement seems set on imposing a national abortion ban should Trump win in November. This particular Supreme Court, too, does not exactly seem eager to take on the contraception question. “When people make the argument about threats to contraception being overblown, they’re talking about the U.S. Supreme Court or Congress,” Ziegler says. “They’re saying Congress isn’t going to ban contraception and they’re right … they aren’t going to ban contraception, but they aren’t going to protect it either.”

So far, congressional Republicans have indeed declined to protect contraception access. Despite polling showing that 80% of Americans say protecting this access is “deeply important” to them, nearly every Republican in the House voted against a 2022 bill to protect it. And 126 House Republicans are cosponsors of the Life Begins at Conception Act, which would imbue a fertilized egg with full “personhood” rights even before implantation, which means before a pregnancy has actually begun. Critics say such a law could outlaw in vitro fertilization – and, if some in the anti-abortion movement succeed in redefining some forms of contraception as abortion, several forms of contraception, too.

The court’s reluctance to weigh in on contraception is also not universal. In his concurring opinion in Dobbs, Justice Clarence Thomas wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” – cases that, respectively, struck down bans on contraception, same-sex intercourse, and same-sex marriage. He deemed these decisions “demonstrably erroneous.” Several Republicans seem to agree that Griswold should be reevaluated. Republican Senator Mike Braun of Indiana said that the states, not the courts, should decide the legality of a host of issues, including contraception and interracial marriage (he later walked back that position on interracial marriage). Republican Marsha Blackburn, the U.S. Senator from Tennessee, called the Griswold decision “constitutionally unsound.”

As the anti-abortion movement extends its activism into anti-contraception advocacy, it is relying on a playbook it spent nearly 50 post-Roe years honing, which largely involved chipping away at a supposedly guaranteed right until it was so weakened that a Supreme Court case could finally kill it off for good. For now, Griswold will almost surely remain the law, even if the most reliable forms of contraception become, in practice, difficult or impossible to access. But eventually, it could fall, too. If there is one thing to understand about the people who make up the anti-abortion movement, Ziegler says, it’s that they are not afraid to play the long game.

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