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House approves bill codifying right to contraception into federal law

Pelosi Right to Contraception Act
U.S. Speaker of the House Nancy Pelosi (D-CA) speaks during an event on Capitol Hill on July 20, 2022, in Washington, D.C., to promote a bill that would codify the right to access and use FDA-approved contraceptives. |

The U.S. House of Representatives passed a bill Thursday that would codify the right to contraception into federal law due to concerns that the U.S. Supreme Court will overturn a 1965 decision establishing a right to obtain birth control.

The Democrat-controlled House voted to approve the Right to Contraception Act, with eight Republicans joining all Democrats in supporting the measure.

The push to pass the legislation stems from concern among congressional Democrats that the June 24 Dobbs v. Jackson Women's Health Organization Supreme Court decision that reversed the Roe v. Wade ruling legalizing abortion nationwide will pave the way to overturn the Griswold v. Connecticut decision that legalized contraception nationwide.

In a statement published last week, Rep. Kathy Manning, D-N.C., who introduced the bill in the House, insisted that "Americans' reproductive freedom, including the longstanding right to contraception, is at risk under this extreme Supreme Court and Republican state legislatures across the country."

"[W]e have already seen state governments attempt to restrict contraceptive methods and obstruct people's private health care choices," Manning said. She described contraception as a "key to achieving gender equality, improving health outcomes for women and their families, bolstering educational and economic opportunity for all, and ensuring people are in control of their own bodies and futures."

Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America, supports the bill.

"Our rights and access to abortion are hanging by a thread. But they're not just coming for abortion — they're coming for contraceptives, LGBTQ+ rights, and more," she said. "While birth control is certainly no substitute for abortion access, access to contraception is critical to control our own bodies, reproductive health care, and futures."

The national pro-life advocacy organization Susan B. Anthony Pro-Life America has characterized the bill as the "Payouts for Planned Parenthood Act."

In a letter to lawmakers, SBA Pro-Life America President Marjorie Dannenfelser said, "this bill has less to do with the ability of individuals to obtain contraception and more to do with ensuring federal funding for abortion providers who also happen to provide contraceptives."

She argues the bill does more than allow access to contraception but also "seeks to bail out the abortion industry, trample conscience rights, and require uninhibited access to dangerous chemical abortion drugs."

"This bill seeks to guarantee funding to abortion providers by barring federal and state governments from redirecting contraception funding to life-affirming health care providers," Dannenfelser added.

"The bill also tramples on freedom of conscience of laws, thereby driving out providers who have deeply held moral or religious beliefs about sterilization and contraceptives. Further, the bill explicitly excludes application of the Religious Freedom Restoration Act."

The pro-life organization contends that the "definition of contraceptives in this bill is overbroad" and "could mandate access to abortion drugs."

According to Dannenfelser, the bill "states that contraceptives include drugs, devices, or biological products intended for contraception, 'whether specifically intended to prevent pregnancy, or for other health needs.'"

"This could include non-controversial applications of the drug but also include the use of the drug to induce abortion," Dannenfelser said. "What follows is that [the bill] would then require the right to obtain a chemical abortion, the right to provide a chemical abortion, and would overturn any law that regulates chemical abortion by singling it out."

Sen. Maria Cantwell, D-Wash., introduced companion legislation in the evenly divided U.S. Senate. The bill's future remains uncertain, as most legislation requires 60 votes to pass the Senate. The low level of Republican support for the Right to Contraception Act in the House suggests the bill might not achieve the necessary GOP votes required to secure passage in the Senate.

While the text of the House bill was not published, the text of the Senate legislation does include a provision defining a contraceptive as "any drug, device, or biological product intended for use in the prevention of pregnancy, whether specifically intended to prevent pregnancy or for other health needs." It also states, "Providers' refusal to offer contraceptives and information related to contraception based on their own personal beliefs impede patients from obtaining their preferred method."

The measure also states that "a health care provider has a corresponding right to provide contraceptives, contraception, and information related to contraception." 

In a concurring opinion in the June 24 Dobbs decision, Justice Clarence Thomas slammed the principle of "substantive due process" as "legal fiction." Explaining that substantive due process was used to assert that the Constitution contained a right to abortion, he suggested that the Supreme Court should "reconsider all of this Court's substantive due process precedents," including Griswold.  

At the same time, Thomas agreed with the majority opinion in Dobbs that "[n]othing in [the court's] opinion should be understood to cast doubt on precedents that do not concern abortion."

While he described Griswold and other cases involving substantive due process as "demonstrably erroneous," he expressed an openness to deciding "whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated," including the right to contraception.

The House's passing of the Right to Contraception Act comes two days after the chamber approved the Respect for Marriage Act, which would codify the 2015 Obergefell v. Hodges decision legalizing same-sex marriage nationwide into federal law.

Along with Griswold, Thomas listed Obergefell as among the "substantive due process" cases he thought the court should revisit.

Ryan Foley is a reporter for The Christian Post. He can be reached at: ryan.foley@christianpost.com

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