Your Body is a Battleground // Part Two: Birth Control Advocates Choose Sides

August 29, 2024

Editor's note: This article is the second in a series about attempts to restrict access to birth control, both in Oklahoma and across the nation. The series will also look at our country’s fragile legal justification for contraceptive access, the historical oppression of women, the health risks associated with pregnancy and childbirth, and what could be in store for reproductive healthcare access if we stay on the current political course.

There’s a growing national trend to restrict women’s access to contraception, even as voters in several states are working to pass ballot measures codifying reproductive healthcare access.

In 2024, eight states have enacted or proposed attacks on contraceptive access, according to the Guttmacher Institute, a leading research and policy organization that works to advance sexual and reproductive health and rights worldwide.

An Indiana law to provide long-acting contraceptives to new mothers with Medicaid coverage was amended to provide for only subdermal implants after anti-abortion groups claimed that IUDs cause abortions. Republican lawmakers in Missouri recently stopped a bill to increase access to birth control pills by inaccurately saying they induce abortions (much like Oklahoma Senator Dusty Deevers, see Part One). An anti-abortion group in Louisiana thwarted legislation to codify access to birth control by falsely correlating emergency contraception with abortion drugs, according to the Washington Post. Meanwhile, a conservative think tank in Idaho asked its state legislature to ban access to intrauterine devices (IUDs) by incorrectly labeling them as “abortifacients,” defined by American College of Obstetricians and Gynecologists (ACOG) as substances “intended to cause termination of a pregnancy so that it does not result in live birth.”

The question of whether pregnancy begins when a sperm fertilizes an egg or, rather—as ACOG states—once the fertilized egg is implanted in the lining of the woman’s uterus, has thrown open the issue of what types of birth control should be legal in states where abortion is illegal, like Oklahoma.

Prominent national reproductive rights advocates, however, reject this extreme premise. “According to both the scientific community and long-standing federal policy, a woman is considered pregnant only when a fertilized egg has implanted in the wall of her uterus,” states a policy review from the Guttmacher Institute.

The timeline from intercourse to fertilization to implantation can last up to about two weeks, according to Planned Parenthood. This indefinite window creates confusion and uncertainty about the exact moment life begins, giving anti-reproductive rights advocates a political opportunity, says Guttmacher. “Anti-abortion legislation in the United States exploits misinformation and ignores medical definitions to curtail access to essential healthcare.”

There are legislative bright spots around the nation. Tennessee and Idaho, both states with severe abortion restrictions, have passed laws protecting six-month or twelve-month supplies of birth control under insurance plans, similar to a bill Oklahoma Senator Jo Anna Dossett tried to pass this year.

Additionally, six states will have reproductive rights measures on their November 5 general election ballots. Proponents in Colorado, Florida, Maryland, and Nevada are seeking to establish a constitutional right to reproductive freedom, while voters in New York will decide a measure that would add language to the state’s bill of rights providing that people cannot be denied rights based on “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” Advocates in South Dakota are working to pass a constitutional amendment that would provide a trimester framework for regulating reproductive healthcare. Other states—Arizona, Missouri, Montana, and Nebraska—are also working to qualify reproductive rights ballot measures this year. Just last week, an initiative in Arkansas was disqualified for the November ballot because it did not file all the necessary paperwork, despite submitting over 100,000 signatures in support of it.

Since the United States Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in 2022, six more states—California, Kansas, Kentucky, Michigan, Vermont, and Ohio—have already voted on abortion related ballot initiatives, “and the side favoring access to abortion prevailed in every state,” according to KFF, a national nonprofit that serves as an independent source for health policy research, polling, and news.

Why attack birth control now?

The type of hormonal birth control that some lawmakers across the country want to ban has been legal in the United States since 1965. The U.S. Supreme Court granted married couples the legal right to contraception in its ruling in Griswold v. Connecticut, and single women were given the same right in 1972 after the Supreme Court’s decision in Eisenstadt v. Baird.

So, why now, after nearly sixty years, is there a push to ban hormonal birth control? The answer to that question is another one: how do today’s legal scholars interpret the U.S. Constitution?

According to Cornell Law School, “substantive due process” is the legal principle that the Fifth and Fourteenth Amendments of the U.S. Constitution “protect fundamental rights from government interference. ”Specifically, those amendments “prohibit the government from depriving any person of ‘life, liberty, or property without due process of law.’”

At first, the Supreme Court used substantive due process to protect the economic rights of workers. In 1938, the Supreme Court ruled that fundamental rights protected by substantive due process are those “deeply rooted in U.S. history and tradition,” even if they are not explicitly listed in the Bill of Rights, according to Cornell Law School. This led to rulings on the right to privacy, the right to contraceptives, the right to interracial marriage, the right to same-sex marriage, and the right to an abortion.

Supreme Court Justice Clearance Thomas’ concurring opinion in the 2022 case Dobbs v. Jackson Women’s Health Organization—which threw out precedents set in Roe and Casey that gave women the right to seek an abortion—rejects substantive due process as having “any basis in the Constitution.” The Dobbs ruling does nothing to overrule how substantive due process is applied generally or in specific contexts, but, Thomas wrote, “in future cases, we should reconsider all of this Court’s substantive due process precedents,” including Griswold (the right to birth control), Lawrence v. Texas (the right to engage in private, consensual sexual acts), and Obergefell v. Hodges (the right to same-sex marriage).

What does all that mean? Just because women currently enjoy the right to birth control doesn’t mean they always will, depending on which judges occupy state and federal benches.

Part Three of this series will examine how reproductive healthcare protects women and the health risks associated with pregnancy and childbirth.

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