In what was advertised as a natural follow-on to the House passage on July 19 of a bill codifying same-sex-marriage rights in view of endangered constitutional protections, the House has now enacted guarantees for access to contraceptive services. But unlike the marriage-equality bill, which attracted 47 Republican votes, spurring fresh hope that it could overcome a Senate filibuster, the contraception bill drew only eight Republican votes along with howls of protest that House Democrats were trying to abridge religious liberty by forcing health care and pharmaceutical providers to comply.
The Right to Contraception Act was designed to respond to Justice Clarence Thomas’s concurrence in Dobbs v. Jackson Women’s Health Organization arguing that other decisions relying on the substantive-due-process rights that underlay the now-reversed Roe v. Wade should be reversed as well. Principal among them was Griswold v. Connecticut, the 1965 decision that first identified a constitutional right to privacy in striking down a state law preventing the distribution of information on contraceptives to married people (a right extended to unmarried people in a later decision). If SCOTUS could no longer be counted on to protect the right to access contraceptive services, House Democrats reasoned, they’d need to do so in federal law, preempting potential state laws. Politically, of course, contraception is less controversial than abortion or, for that matter, same-sex marriage (though those rights also command majority support).
But the proposed legislation ran into the buzz saw of latter-day Republican “religious liberty” concerns. They argue that the bill might keep states from allowing health-care professionals or pharmacists to refuse to provide services (e.g., sterilization) or products (especially morning-after pills, RU-486 abortion pills, or IUDs) that allegedly violate their consciences. So the iron hold that both the anti-abortion movement and Christian-right activists have on most members of the GOP will likely doom the legislation to death by Senate filibuster.
Of the eight Republican “yea” votes on the contraception bill, four were cast by House members who are retiring this year (Anthony Gonzalez, John Katko, Adam Kinzinger and Fred Upton), and a fifth came from Liz Cheney, who is widely expected to lose her reelection primary in August).
The good news is that despite Thomas’s thunder-and-lightning reversal of Griswold, this is probably far down the list of conservative judicial priorities, and any direct threat to contraception rights would create a public firestorm of unimaginable dimensions. But as this vote shows, Republicans remain dangerously enamored with a concept of “religious liberty” that essentially means insulating conservative Christians from basic notions of equality that are binding on their fellow citizens. With the federal judiciary on their side, reproductive rights of any sort can no longer be taken for granted.