Political Issues

What You Need To Know About Access to Contraception in a Post-Roe America

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With its recent 6-3 ruling to overturn Roe v. Wade in Dobbs v. Jackson Women's Health Organization (which removed the constitutional right to abortion in the United States), the Supreme Court effectively pulled a single card—the abortion card—out of a delicately balanced house of cards. As a result, experts anticipate that a handful of other cards may soon fall, too—including the contraception card. Because Roe hinged on an interpretation of the Constitution that was also used by cases protecting the right to contraception, overturning it now opens the door for the court to reexamine these earlier decisions.

"The Dobbs decision argued that the 'liberty' interest in the 14th Amendment's guarantee that all citizens have the right to 'life, liberty, and property' did not encompass the right to make private reproductive decisions," says Cynthia Daniels, political scientist at Rutgers University and director of the Informed Consent Project, a research organization that evaluates information about fetal development held by various states.

And with that right to make private reproductive decisions no longer firmly protected, she suspects that, like abortion, access to contraception could soon be legally challenged, and in the worst-case scenario, face a similar fate. At the same time, certain anti-abortion politicians are working to categorize particular kinds of contraception as abortifacients (despite medical evidence against this), grouping them in a way that could similarly restrict legal access.

The legal argument calling contraception access into question

This domino effect is not baseless conjecture: In Supreme Court Justice Clarence Thomas's concurring opinion, he explicitly called for the Court to “reconsider all…substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Griswold v. Connecticut protects the right of married couples to access contraception.

Though Thomas didn’t note it directly, the 1972 decision of Eisenstadt v. Bard used the same 14th Amendment interpretation to protect the right of unmarried folks to access contraception. “Both of these decisions [Griswold and Eisenstadt] were based on the right to privacy and the liberty to make one's own reproductive choices, which have been thrown into question with the Dobbs decision,” says Daniels.

Underscoring the Dobbs decision is an approach to interpreting the Constitution called originalism. “This tries to figure out what the Framers were thinking when they drafted the Constitution and the amendment in question—so, in this case, that would put us at either 1791, when the Bill of Rights was drafted, or 1868, when the 14th Amendment was ratified,” says Khiara M. Bridges, JD, PhD, professor of law at University of California, Berkeley, School of Law. “And in both years, I can assure you that the Framers were not thinking about reproductive rights. And they were certainly not thinking about the ability of people to use contraception. So, it simply wouldn’t be a right that the Constitution explicitly contemplates.”

The reason contraception was legally protected in both Griswold and Eisenstadt is the establishment of substantive due process, a term that refers to the Court’s ability to protect rights that are not explicitly listed in the Constitution. And now, Thomas is suggesting, from an originalist approach, that we reconsider all the decisions springing from that perspective. Ostensibly, that could tumble an entire edifice of cases, says Dr. Bridges, including all of those above (affecting key LGBTQ+ rights and contraception access) and dating back to cases from the 1920s, like Meyer v. Nebraska and Pierce v. Society of Sisters, both of which surround the right to raise a child how you see fit.

How the threat against contraception access is likely to pan out

While contraception could certainly get swept up in the crackdown on privacy rights if the Court starts reversing other cases decided with the same logic as Roe, it's unlikely that this will happen until the Court is pressured by state legislators—in the same way that Roe was only judicially called into question when certain states proposed abortion bans. “Right now, there are no similar trigger laws in place for contraception, and criminalizing it is still an unpopular opinion,” says Dr. Bridges.

“Right now, there are no similar trigger laws in place for contraception [as there are for abortion], and criminalizing it is still an unpopular opinion.” —Khiara M. Bridges, JD, PhD

But, public opinion can change fast, and anti-abortion rights activists and legislators are likely to garner the political momentum from Roe's reversal to push an anti-contraception agenda. In fact, some anti-abortion rights politicians have previously claimed that certain types of emergency contraception (like the Plan B One-Step pill) and IUDs actually constitute abortion and should be similarly restricted.

This logic stems from their belief that life begins at conception, or the moment a sperm fertilizes an egg. Using this line of thought, it follows that any type of contraception that they suspect may prevent the implantation of a fertilized egg—including Plan B, certain IUDs, and progestin-only birth control pills—could be effectively terminating a life (as they define it).

But the very belief that a just-fertilized egg is a person is not the medical consensus, says Dr. Bridges. By contrast, the medical community is aligned on the fact that pregnancy begins only when a fertilized egg implants into the uterine lining (and not beforehand). And, notably, this medical consensus is also separate from the question of when life begins, at some point after implantation.

It’s also worth noting that medical evidence does not support the claim that any of the above-mentioned contraceptives typically prevent implantation, either. Instead, according to reproductive endocrinologist and advisor at reproductive-health company Natalist Aimee Eyvazzadeh, MD, they make the uterus inhospitable to sperm (copper IUDs) or prevent fertilization of an egg by a sperm (progestin pills and Plan B). “Even so, particularly in the trigger-ban states and others looking to criminalize abortion, we should be on the lookout for the criminalization of these kinds of contraception, too,” says Dr. Bridges.

In certain states, recent political action already points to that potential. For example, in Missouri, lawmakers tried to restrict Medicaid funding from covering Plan B and IUDs last year in legislation aimed at Planned Parenthood; Idaho Rep. Brent Crane announced that he would hold hearings on legislation banning emergency contraception earlier this year; and just this past month, a Louisiana house committee passed a bill defining human personhood as beginning at the point of fertilization, which could be used to justify outlawing both emergency contraception and certain IUDs. (While these actions predate the overturning of Roe v. Wade, they serve as compelling evidence of what we may expect to come.)

Notably, access to other types of contraception—like combined estrogen-progestin birth control pills, Depo-Provera shots, patches, vaginal rings, and hormonal IUDs—is less at risk right now, mostly because these work by preventing ovulation, says Dr. Eyvazzadeh. And that makes it tougher to conflate them, in any way, with abortion: By preventing the ovaries from releasing an egg, these contraceptives remove the potential for an egg to be fertilized in the first place, eliminating any gray area about whether they’re interfering with an already living thing.

What this means for contraception methods available to you

Though none of the above anti-contraception stances have been codified as law just yet, political movement in that direction doesn’t just threaten access for all people; it also stands to widen an already existing contraception gap. That is, any restriction in access to contraception will disproportionately affect people of color and folks of lower socioeconomic status—people who are already more likely to live in contraception deserts, or areas lacking in federally funded reproductive-health clinics.

Anti-contraception stances stand to widen an already existing contraception gap.

In the meantime, experts suggest getting ahead of your reproductive-health care, if possible, by considering getting an IUD (if you have long-term contraception needs) or replacing yours, if it’s nearing its expiration date. And given that there have been reports of increased interest in IUDs following the leaked draft opinion for the Dobbs case in May, it'd be wise to consider your options sooner than later.

The same goes for purchasing Plan B now, if you suspect there's any chance you might need it in the future. (Already, Amazon and several drugstores are running low on stock, and, in some areas, sales are restricted to three units per person.) Alternatively, you may also be able to get birth control or Plan B online by turning to telehealth providers like Favor (previously known as The Pill Club), Nurx, and Hims & Hers.

Potential shortages aside, "in general, it's most important for people in states where abortion has been banned or a ban is forthcoming to stock up [on these contraceptives], since those are the states that are most likely to extend those bans to IUDs, emergency contraception, and potentially even hormonal contraception in the future," says Daniels.

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