The Dobbs argument ignored “contraceptive deserts” and burdensome costs
But that’s not the only flaw in Stewart’s argument. Birth control has never been as affordable, easy and widespread in the U.S. as he suggests, according to
our research. Take affordability. One of the most
widely used forms of contraception — “the pill” — costs
approximately $370 a year, the equivalent of 51 hours of minimum wage work. Not until the mid-1990s did state governments begin requiring health insurance plans to cover prescription contraceptives. That’s a major out-of-pocket cost for people who may have to put housing or food first.
Although the Affordable Care Act broadened insurance coverage for contraception, the Supreme Court’s 2014 decision in
Burwell v. Hobby Lobby and a 2017 Trump administration
order limited that coverage by exempting employers and insurance providers who have objections based on “
sincerely held religious beliefs.”
Nor is contraception always easy to get. In most states, women must first get a doctor’s prescription and then find a pharmacist who will fill it — which can be hard in rural areas or for those whose jobs and families give them little control over their time. Only
15 states allow pharmacists to prescribe birth control themselves.
Six states allow pharmacists to refuse to dispense contraceptives altogether if they have religious or other conscience-based objections.
Overall, as a result of state-level differences in direct funding for family planning and
Title X implementation, between
17 percent and 53 percent of Americans currently live in “contraceptive deserts” with inadequate and inequitable access to affordable reproductive health care. In other words, contraception cannot possibly be a meaningful substitute for access to abortion.
If the court topples Roe, it puts constitutional protections for birth control on shaky ground
But here’s the more important question: Will women still have access to birth control in a post-
Roe world? The limits described above will likely expand and some states will try to ban contraceptive access entirely.
There are two reasons for this. First, constitutional protections for abortion and birth control are linked. In
Griswold v. Connecticut, the Supreme Court invalidated a law prohibiting birth control, arguing that the prohibition violated a fundamental “right to privacy.” This right to privacy is the foundation for
Roe v. Wade.
Justice Sonia Sotomayor clearly had this precedent in mind during oral arguments for
Dobbs, saying, “in
Roe, the Court said … certain personal decisions that belong to individuals and the states can’t intrude on them. … We have recognized that sense of privacy in people’s choices about whether to use contraception or not.” If the court invalidates
Roe v. Wade, contraception rights might be precarious as well.
The changing composition of the court, particularly the replacement of reproductive rights champion Ruth Bader Ginsburg with conservative Amy Coney Barrett, increases the chances that legal precedents related to contraception may be overturned. When asked during her confirmation hearing whether
Griswold v. Connecticut was decided correctly, Barrett declined to answer on the grounds that a full ban on contraception at the state level was “
unthinkable.” Barrett’s silence on Griswold, coupled with the court’s new conservative majority, sends the signal to state governments that more restrictive contraception policies might be welcomed.
Religious groups classify some forms of birth control as abortion
Further, in recent decisions, the court let religious groups argue that some forms of contraception are “abortifacients.” For instance, in the Hobby Lobby case, the company objected that four FDA-approved contraceptives prevented implantation of a fertilized egg — and that that counted as an abortion. More specifically, the company
claimed that the owners’ “religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.”
The Little Sisters of the Poor, an organization of Roman Catholic nuns, challenged the paperwork requirements of
religious exemptions under the Affordable Care Act, arguing that even
signing the exemption forms constituted an endorsement of contraception and a violation of their religious tenets. In both of these cases, the court tacitly endorsed the plaintiffs’ conflation between birth control and abortion by not clearly distinguishing between the two in its rulings. This conflation has been subsequently echoed by
Justice Samuel A Alito Jr. and in
briefs submitted in
Dobbs.
That legal blurring of distinct scientific boundaries between abortion and birth control threatens contraceptive access in the United States. Some state governments will listen to the
Dobbs arguments and extrapolate from the
Hobby Lobby and
Little Sisters of the Poor decisions — and will probably ban some forms of contraception outright, using the
discredited idea that contraceptives
act as abortifacients.
In other words, the court doesn’t have to formally end legal protection for contraception use. If it allows plaintiffs to call contraception abortion, and
Dobbs ends legal protection for abortion, then contraception is at risk.