Uncommonly Silly

The GOP Wants Us to Believe They'll Protect Contraception

Remember what I said a few weeks ago when Donald Trump gave a gobblygook answer on whether he supported access to contraception? I said, don’t worry about the master of word salads: he has dementia and was just covering for the fact that he couldn’t follow the question. What we should all worry about, I argued, were the less addle-minded Republicans in power at the state and federal level as well as the Far-Right judges who dominate our judiciary thanks to Trump. I hate to say I told you so. That’s a lie. I love saying I told you so (ask my kids). I just wish I wasn’t right about this one.

Senate Republicans blocked a vote on the Right to Contraception Act last week using the filibuster. While they wouldn’t even let the measure come to the floor for debate, in true GOP fashion, they argued in the press that it was both unnecessary and government overreach.

The legislation, sponsored by Democrats Ed Markey (MA) and Mazie Hirono (HI) defines contraceptives as “any drug, device, or biological product intended for use in the prevention of pregnancy.” It would establish a national right to “obtain contraceptives and to voluntarily engage in contraception” and prohibit the federal government or states from enforcing laws or standards that impede that right.  

This seems so basic to those of us who have picked up a package of birth control pills from our local Walgreens, gotten an IUD inserted, or ran into the bodega on the corner for condoms because the date was going better than expected. But we have to remember that it wasn’t that long ago that even married couples couldn’t get birth control, and that right for unmarried people is the same age as me (read: a little tired, but far from old in the grand scheme of things).

In the 1965 case Griswold v. Connecticut, the Supreme Court ruled that a Connecticut law making the advertisement, sale, or use of contraception illegal violated a right to privacy that was implied in the constitution. The specific right to contraception was extended to unmarried people in Eisenstadt v. Baird in 1972. The larger right to privacy was then applied to abortion in Roe v. Wade the following year, and we all know how that’s going.

Josh Hawley, the Missouri Republican who is best known for his role as fist-pumping coward during the January 6^th riot, voted to block the Right to Contraception Act along with all but two other Republicans present. (Nine Republican Senators were conveniently absent during the vote.) He claimed it was unnecessary because, “Nobody’s going to overturn Griswold. No way.”

Nobody except maybe Clarence Thomas who—in between free luxury vacations—wrote a concurring opinion in the Dobbs case that specifically said:

In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents.

The 1879 law at issue in Griswold was funnily enough written by P.T. Barnum. In addition to being the Greatest Showman, Barnum was a Connecticut legislator and the Chairman of the House Committee on Temperance. He threw his support behind An Act to Amend an Act Concerning Offenses Against Decency, Morality and Humanity. Among other things, the law banned the use of any drug, medical device, or other instrument in furthering contraception. 

The law became known as the Barnum Act (perhaps because AAAAACOADMH sounds like something you scream at the top of your lungs when pissed). With it, Connecticut became one of 24 states to codify a version of the Comstock Act which had been passed by Congress in 1873. Connecticut’s law was stricter than most, however, because it didn’t just regulate the sale or restrict the advertising of contraceptives, it outlawed using them. Married couples faced arrest and imprisonment for using birth control.

Estelle Griswold was the head of Planned Parenthood in Connecticut. She opened a birth control clinic along with a professor at Yale specifically to challenge the law. When the case reached SCOTUS, seven members of the Warren Court ruled that the constitution included a general right to privacy that this law impeded. Interestingly, even those in the majority differed on where in our nation’s founding document such a right was housed. The majority opinion by Justice Douglas suggested that the rights enumerated in the first, third, fourth, and ninth amendments had penumbras that together protected privacy. In a concurring opinion, Justices Goldberg, Warren, and Brennan argued, instead, that the right to privacy came more specifically from the ninth and fourteenth amendments.

Justice Potter Stewart dissented but not because he supported the Connecticut law. Stewart said that using contraceptives in marriage was obviously a private decision, and that the law was “uncommonly silly” and unenforceable, but not unconstitutional. He wrote, “But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”

If Pay-to-Play Thomas gets his way and the court revisits Griswold, we could easily have a majority that agrees with Potter Stewart and rules the constitution doesn’t protect our access to condoms, pills, or patches. (Can we all agree that Potter Stewart is the best Supreme Court Justice names in history, with the possible exception of Thurgood Marshall?) Such a decision would allow states to wreak as much havoc on our right to prevent pregnancies as they have on our right to end them.

Democrats know that people like their birth control and would like to keep it especially now that we’ve raised the stakes on pregnancy in much of the country. It’s not just that people can’t end an unintended pregnancy, those who want to be pregnant now have to spend their whole gestation fearing what will happened if they need emergency medical care. And because doctors don’t want to go to jail, more people are now living in places that don’t have enough prenatal care providers or safe places to deliver.

The Democrats brought the Right to Contraceptive Act up for a vote knowing that voters like it and that the GOP would oppose it. The Republicans called it a stunt, and I’m all for it because we need the Dems to be shrewd on this one. Republican lawmakers are coming for birth control and forcing them to go on record should make for some good election year headlines and political ads. As Senator Patty Murray (D-WI) said recently, “Women’s experiences are too personal for Republicans to spin, and the record of the Republican party is too clear for them to deny.”

Of course, the GOP tried to spin it. Senator John Corwyn (R-TX) scoffed, “It’s a phony vote because contraception, to my knowledge, is not illegal. And to suggest that somehow it’s in jeopardy, I think, should be think, should be embarrassing.” At the same time, other Republicans promised they were the party that was going to protect contraception. They pointed to a bill introduced by Joni Ernst (R-Iowa) with a lofty title—Allowing Greater Access to Safe and Effective Contraception Act—to prove it.

The AGASECA, as I’m certain it will be called, is less than three pages long and does nothing to protect contraceptive rights. It’s a bid to make it easier for drug companies to take birth control pills over the counter as was recently done with OPill. OTC birth control pills are great, but they won’t be any more protected by this bill than the ones behind the counter if legislators in Iowa or Oklahoma or Missouri decide they want to reinstate their Comstock-era anti-birth control laws.

Ernst’s bill, by the way, specifically excludes emergency contraception. Far from protecting contraception access, the bill subtly reiterates the inaccurate idea that some contraceptive methods, like the morning after pill and IUDs, cause abortions. It also threatens young people’s access by saying petitions for OTC access had to be limited to users over 18.

Access to contraception is the key to women’s independence. We have decades of research that says so. A 2019 study by the Institute for Women’s Policy Research, for example, found that contraceptive access increased women’s college enrollment by an estimated 12 to 20 percent between 1970 and 1990. The pill is also partly responsible for increasing the percentage of professional positions held by women in fields like law and medicine. In addition, the study showed that having access to contraception by age 20 reduced the probability that a woman lived in poverty later in life.

It's not that Republicans don’t understand this, it’s that they liked it better the other way when women’s contraceptive choices were limited to “not tonight honey I have a headache,” and we had nothing more to strive for than being Harrison Butker’s wife. They’d like to take us back there while using bogus bills to pretend they have our best interests at heart.

They don’t.

Kudos on the Democrats for at least making them say it on the record. Laws to block birth control are not just uncommonly silly, as Potter proclaimed, they’re dangerous. Sometimes it just makes you want to scream “AAAAACOADMH!”