Of all the matters in politics over the past several years, few issues touch so many lives, or are as urgent to so many, as a woman’s right to an abortion and her related right to access contraception. This month, the Right to Contraception Act was up for vote in the U.S. Senate June 5, nearly 68 years after the June 7, 1956, U.S. Supreme Court decision in Griswold v. Connecticut ruling a state ban on the use of contraceptives violated marital privacy rights under the due process clause of the 14th Amendment.
The Right to Contraception Act passed in the House of Representatives in 2022 in a 228-195 vote, but it required Senate approval before it could become federal law. The vote to advance the measure failed in the Senate, with 51 votes in favor and 39 against.
Support of the act was extremely partisan. In the House, just eight of the representatives who voted in favor of the act were Republicans; the rest were Democrats. On June 5, only two Republicans voted in favor of the act. Even though the act did not pass in the Senate, Democrats will utilize the results to encourage constituents and to showcase where Republicans stand on the issue.
Currently, individual states have the authority to determine whether its citizens have access to contraceptives, which ones and if insurance will cover the costs of them. Thirty states require insurance carriers to cover the cost of contraceptives.
Ohio’s Issue 1, which passed Nov. 7, 2023, provides a state constitutional right to “reproductive decisions” and “decisions about abortion, contraception, fertility treatment, miscarriage care and continuing pregnancy,” among other things.
The Right to Contraception Act would have created a statutory right to conception across the nation, not leaving the law up to the individual states.
The act intended to protect “accessing” contraception, “engaging” in contraception, and shielding a health care provider’s ability to provide contraceptives, contraception and information related to contraception. The proposed act defines contraception as “an action taken to prevent pregnancy, including the use of contraceptives or fertility-awareness based methods, and sterilization procedures.”
A contraceptive is defined as any “drug, device, or biological product” to prevent pregnancy, including birth control pills, condoms, patches, vaginal IUD’s, emergency contraception and shots.
The act was one of many proposed laws in response to the U.S. Supreme Court’s 2022 landmark decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and took away the constitutional right to an abortion. In Dobbs, a majority of Supreme Court justices did not agree that the right to an abortion falls under the due process clause of the Constitution.
The Dobbs decision sparked fears that because federal protections to abortion ended contraception, other rights previously protected by the Court under the Due Process Clause would be next.
In fact, U.S. Supreme Court Justice Clarence Thomas, in his concurring opinion in Dobbs, stated that the Supreme Court “should reconsider all of this court’s substantive due process precedents, including Griswold – right to contraception, Lawrence – illegality of “Homosexual Conduct” law – and Obergefell – right to marriage for same-sex couples.” Justice Thomas went on to state the court has “a duty to correct the error established in those precedents” by overruling them.
The right to contraception could also be a factor in the 2024 presidential election, as former President Donald Trump has recently commented that he might support contraception restrictions, potentially making birth control harder to get and encouraging insurance coverage of natural family planning.
While there are party divisions on rights that are arguably fundamental rights, one thing remains true: your vote counts.
This article originally appeared as a column for the Cleveland Jewish News.