Democrats and Republicans keep colliding over contraception

This story was originally published by The 19th, a nonprofit news organization.

Democratic efforts to protect contraception access — and Republican opposition — were thrust into the 2024 spotlight last week when Donald Trump told a Pittsburgh CBS affiliate that his GOP White House campaign was “looking at” restrictions on contraception, and that he ultimately expected “some states are going to have very different policies than others.”

Trump was correct — states are taking very different approaches to contraception access, depending on which party is in control. On the federal level, there is also a partisan divide, but Republicans in Congress lack the votes to restrict access, and Democrats lack the votes to protect it.

Democratic lawmakers across the country have pushed to preserve access to any type of reproductive care they can, including contraception, since the U.S. Supreme Court in June 2022 overturned the federal right to abortion in the case Dobbs vs. Jackson Women’s Health Organization. But in the current state legislative sessions alone, Republicans in 12 states have blocked Democratic bills aimed at shoring up contraception access, with Republican governors vetoing measures in the swing states of Nevada and Virginia, according to the Democratic Legislative Campaign Committee.

“The policy agenda of the Republican Party is being accomplished in the states and it looks like abortion bans, it looks like bans on contraception, it looks like bans or challenges to IVF and personhood — this is what they’re about,” DLCC President Heather Williams told The 19th.

Also this week, in the U.S. Senate, Democratic Majority Leader Chuck Schumer announced after Trump’s interview that he will tee up a vote on a bill called the Right to Contraception Act to coincide with the June 7 anniversary of the Supreme Court’s 1965 ruling in Griswold v. Connecticut, which found that state contraception bans violated married Americans’ constitutional right to privacy.

In 2022, shortly after Dobbs, the then-Democratic-controlled U.S. House approved the Right to Contraception Act — but the effort failed in the Senate. Now, the House is controlled by Republicans and the Senate still by Democrats, but the measure is still expected to lack the votes it needs to clear the 60-vote threshold required in the upper chamber. One of the bill’s sponsors, Sen. Ed Markey of Massachusetts, told The 19th that it was nevertheless important to hold another vote because it “will put every member on the record on where they stand, and it will show the American people whether they are willing to protect Americans’ health, freedom and equality.”

The Right to Contraception Act would establish a statutory right to contraception that no other law could impede, including a 1993 religious freedom law — an aspect that conservatives find problematic. It requires no new funding. Some Republicans also believe that it would protect access to mifepristone, which is typically used for medication abortion but can be used as contraception, though it is uncommon. The bill does not mention the drug by name. A group of anti-abortion doctors challenged the Food and Drug Administration’s 2000 approval of mifepristone and the case is currently before the Supreme Court.

Trump’s interview — and the fracas that followed — highlighted the dilemma facing Republican candidates in competitive states and districts in November. The anti-abortion groups with whom their right wing has become aligned are pushing policies that are unpopular with voters, including Republicans. Poll after poll shows that a majority of Americans want access to legal abortion, and an even greater percentage support access to contraception.

After a series of questions about abortion, Trump was asked: “Do you support any restrictions on a person’s right to contraception?” He answered: “Well, we’re looking at that and I’m going to have a policy on that very shortly. And I think it’s something you’ll find interesting.”

The news anchor followed up with: “Well, that suggests that you may want to support some restrictions like the morning after pill or something?” Trump responded: “We are also, you know, things really have a lot to do with the states. And some states are going to have different policies than others.”

Within hours, Democratic President Joe Biden’s reelection campaign blasted out a press release with the subject line: “Trump on Restricting Contraceptives: ‘We’re Looking at That.’” Trump volleyed back on his social media platform that it was a “Democrat fabricated lie” that he might impose “RESTRICTIONS ON BIRTH CONTROL” and “I DO NOT SUPPORT A BAN ON BIRTH CONTROL, AND NEITHER WILL THE REPUBLICAN PARTY!”

Trump’s campaign suggested he had conflated contraception with abortion medication by pointing reporters to a recent interview with Time magazine, in which he teased an announcement on mifepristone. His campaign did not respond to The 19th’s request to discuss his reproductive health care policies in more detail.

The Supreme Court’s Dobbs decision was made possible by a Trump-cemented conservative majority. Its unpopularity with voters was one reason why Democrats fared better than history predicted in the 2022 midterms — and its fallout is continuing to create headaches for Republicans in moderate areas.

The Right to Contraception Act, meanwhile, is popular with voters. When the advocacy group Americans for Contraception conducted a recent national poll on the legislation, it showed that 81 percent of voters supported it, including 94 percent of Democrats and 68 percent of Republicans. But GOP lawmakers across the country, including in political swing states, have blocked state-level versions from becoming law — including with gubernatorial vetoes in Nevada and, just last week, in Virginia.

Virginia Gov. Glenn Youngkin speaks after the end of the Virginia legislative session, addressing the media at Eggs Up Grill in Richmond, Virginia, on March 14, 2024. Minh Connors for The Washington Post via Getty Images.

Virginia Gov. Glenn Youngkin vetoed a version of the Right to Contraception Act that was passed by the only state legislature in the South controlled by Democrats. Youngkin, a Republican, said he supported contraception access but wanted a more “robust conscience clause for providers” who object to prescribing it. Plus, he added, “the Code of Virginia already protects access to contraception through health insurance plans.”

Democrats in Virginia and elsewhere say it isn’t that simple.

Democratic lawmakers interviewed by The 19th pointed to the same thing when asked why they felt legislation was needed: Justice Clarence Thomas’ concurring opinion in the Dobbs case. In it, Thomas wrote that now that Roe v. Wade was gone, “we should reconsider all of this Court’s substantive due process precedents,” including Griswold; Lawrence v. Texas, on adult non-procreative sex; and Obergefell v. Hodges, on marriage equality.

“There have been mumblings about contraception for a few years, but it’s just so widely popular that we weren’t really paying attention until the Dobbs decision came down and Supreme Court Justice Clarence Thomas mentioned the Griswold case and that it needed to be looked back into,” said Virginia Del. Marcia Price, a primary cosponsor of the Right to Contraception Act in that chamber.

Ofirah Yheskel with the Democratic Governors Association said that GOP opposition to protecting contraception “goes to show that Republicans were never going to stop at Dobbs. When Glenn Youngkin had the chance to protect reproductive rights, he put this veto forward — I think there’s a clear contrast here” between the two parties.

The Right to Contraception Act has also failed in other states key to both parties’ chances in November.

In Wisconsin, abortion has been legal since September 2023 after a court put a 1849 ban on hold and abortion rights figured prominently in a 2023 state Supreme Court race. But the Republican-controlled state legislature refused to hold a vote on the Right to Contraception Act before their session ended in March.

In Arizona, backlash over a series of competing abortion bans dating back to before the Civil War played a role in electing a Democratic governor and attorney general in 2022. Yet the Right to Contraception Act did not make it to Gov. Katie Hobbs’ desk because Republicans still have slim majorities in both legislative chambers and united against it.

One reason that Republican lawmakers are increasingly unwilling to codify the right to contraception is because the anti-abortion groups that wield immense power with the party’s right wing are lobbying against the bills — in part because for more than a decade now they have been trying to redefine some forms of contraception as abortion, abortion law historian Mary Ziegler said.

“One of the fronts in the war on contraception is ‘What is contraception?’ We’re already seeing the meaning of abortion contested in medical emergencies. … There are parallel moves to say ‘Well, actually an IUD is an abortion, it turns out this isn’t contraception at all,” Ziegler said.

Intrauterine devices, or IUDs, are small, T-shaped devices that a health care provider inserts into the uterus to prevent pregnancy — some use hormones, some don’t. They are one of the most effective forms of reversible, long-term contraception. Emergency contraception is often called the morning-after pill, and is a hormonal medication you take within several days of having intercourse. Neither are forms of abortion.

Redefining them as methods of abortion also supports the anti-abortion movement’s end goal of establishing fetal personhood, which would extend the rights of already born babies to fetuses, or even fertilized eggs. A Republican bill introduced last year in the U.S. House, for example, would establish personhood rights for even fertilized eggs that have not implanted in the uterine wall — the stage at which most medical professionals say a pregnancy begins.

Prominent anti-abortion group SBA Pro-Life America opposed the Right to Contraception Act when the House voted on it in July 2022, as well as when it came up in Virginia. The group said in a statement provided to The 19th that it “is a single-issue organization focused on abortion. We do not take a stance on contraception.” They have, in the past, promoted the idea that IUDs and emergency contraception can be abortion.

The leader of Alliance Defending Freedom, which helps lawmakers write anti-abortion legislation and is representing the group of anti-abortion doctors challenging mifepristone, told Politico in March that “ADF has never advocated for limitations on access to contraception.” But ADF has in recent years represented a nurse practitioner and a pharmacist who refused to dispense emergency contraceptives, arguing they were “abortion-causing drugs.” “No one should be forced to violate his conscience in the workplace, and that includes dispensing drugs that can cause an abortion,” an ADF attorney wrote on behalf of the pharmacist who refused to dispense the morning-after pill ella.

The Heritage Foundation has crafted a blueprint for Trump’s potential transition period before a second term called Project 2025. In it, they encourage him to remove emergency contraception from the coverage mandate contained in the Affordable Care Act, saying it is a “potential abortifacient” and “close cousin” to mifepristone. Heritage Foundation alumni also hold key posts in Youngkin’s administration and at state entities.

Price, the Virginia delegate, said that it is clear to Democrats there that anti-abortion groups are aiming to “redefine and also to shift public opinion” on what is and isn’t contraception. In her private conversations with Republican women lawmakers, she said, they acknowledged that contraception is widely popular with voters and can also be used to manage conditions such as heavy menstruation, endometriosis and polycystic ovary syndrome. When it came time to vote, though, all Republican senators voted against the Right to Contraception Act; only a few Republican delegates from the most competitive districts joined Democrats.

When the Virginian-Pilot asked Republican state Sen. Emily Jordan why she voted against protecting contraception she gave them a two-word answer: “Ask caucus,” she said, in a reference to party leadership.

Price said that “contraception helps us leave the house, whether it’s birth control or IUDs, so our quality of life is wrapped up in these conversations.” She and other Virginia Democrats plan to reintroduce legislation to protect contraception next year, when Youngkin will be in his final year.

“There is no way we will stop having these conversations,” she added.