Enshrining the right to contraception: Legislation would reverse state restrictions

More than 50 years ago, the Supreme Court recognized the American right of women to contraception in Griswold v. Connecticut.

Enshrining the right into federal law would reverse steps taken by Republicans in states across the U.S. to restrict access to contraceptives and ensure that any future attempt by the Supreme Court to overturn Griswold v. Connecticut would not endanger access to an essential health care element.

U.S. Sen. Tim Kaine of Virginia, a member of the Senate Health, Education, Labor and Pensions (HELP) Committee, joined Sens. Edward J. Markey of Massachusetts, Mazie Hirono of Hawaii, Tammy Duckworth of Illinois and other colleagues in introducing the Right to Contraception Act. The legislation would codify Americans’ right to contraception.

“Comprehensive health care should include access to contraception, which is essential for family planning and management of many health conditions,” said Kaine. “The vast majority of Americans support protecting women’s right to contraception, and this bill is critical to protecting this important freedom.”

The lawmakers first introduced the legislation in July 2022 in the wake of Justice Clarence Thomas’s concurring opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the constitutional right to an abortion. In his concurring opinion, Thomas urged the Court to “reconsider” its substantive due process precedents, including Griswold v. Connecticut.

The Right to Contraception Act would uphold access to contraception by:

• Guaranteeing the legal right for individuals to get and use contraception;
• Establishing the right for health care providers to provide contraceptives, contraception, and information, referrals, and services related to contraception;
• Prohibiting the federal government or any state from administering, implementing, or enforcing any law, rule, regulation, standard, or other provision that would prohibit or restrict the sale, provision, or use of contraception; and
• Allowing the Department of Justice (DOJ), providers, and individuals harmed by restrictions on contraception access made unlawful under the legislation, to go to court to enforce these rights.

Nine out of 10 American adults support access to all forms of birth control, but access has become restricted in several states by the elimination of public funding, defining abortion broadly enough to include contraception, and allowing health care providers to deny service related to contraception on the basis of their own beliefs. Attacks on health care, especially reproductive health care, fall hardest on Black, Brown, Indigenous and immigrant communities, as well as individuals with disabilities, low-income individuals, and Americans who live in rural and underserved areas.

In addition to Kaine, Markey, Hirono, and Duckworth, the Right to Contraception Act is cosponsored by 32 other senators, including Maryland’s Ben Cardin, Dianne Feinstein of California, Bernie Sanders of Vermont and Elizabeth Warren of Massachusetts.