WASHINGTON — An attempt to reinforce Americans’ access to contraception failed Wednesday when U.S. Senate Republicans blocked a bill from advancing toward final passage.
The 51-39 procedural vote required at least 60 senators to move forward, but fell short after GOP lawmakers said the measure was too broad as well as unnecessary. Alaska Sen. Lisa Murkowski and Maine Sen. Susan Collins, both Republicans, broke with their party and voted to advance the legislation.
Democrats argued during debate on the 12-page bill that it would provide a safety net should a future Supreme Court overturn two cases that ensure married and unmarried Americans have the right to make decisions about when and how to use contraception.
GOP senators contended the vote was mere politics and that if Democrats were serious about safeguarding access to contraception for future generations, they’d work with Republicans on a bipartisan bill.
Nevada Democratic Sen. Jacky Rosen said the Supreme Court’s decision to overturn the constitutional right to an abortion in the Dobbs decision two years ago showed women how quickly things can change.
“It demonstrated that a fundamental right, the right of women to make decisions over their own bodies, could be taken away in the blink of an eye,” Rosen said.
Women, she said, can’t rely solely on the Supreme Court to uphold the cases that have guaranteed Americans access to contraception for more than 50 years.
“Contraception has been safely used by millions of women for decades,” Rosen said. “It’s allowed women to take control over their own bodies — to decide when they want to start a family, how many kids they have, who they want to start a family with.”
“For these very same reasons, the right to contraception has been a target of anti-choice extremists for years,” Rosen added.
Senate Minority Whip John Thune, the South Dakota Republican seeking to become the chamber’s next GOP leader, said the bill was meant to “provide a talking point for Democratic candidates.”
“These votes have nothing to do with legislating and everything to do with boosting Democrats’ electoral chances, he hopes, in this fall’s election,” Thune said, referring to Senate Majority Leader Chuck Schumer.
The legislation was a non-starter with many Republicans, Thune said, because it didn’t carve out the conscience protections that exist under the Religious Freedom Restoration Act.
The federal law, enacted in 1993 after being sponsored by Schumer, established “a heightened standard of review for government actions that substantially burden a person’s exercise of religion.”
Sales of contraceptives
Democrats’ bill would have protected “an individual’s ability to access contraceptives” and “a health care provider’s ability to provide contraceptives, contraception, and information related to contraception.”
The legislation would have barred state and federal governments from prohibiting the sale of any contraceptives or blocking “any individual from aiding another individual in voluntarily obtaining or using any contraceptives or contraceptive methods.”
The bill defined contraception as “an action taken to prevent pregnancy, including the use of contraceptives or fertility-awareness-based methods and sterilization procedures.”
House Democrats introduced an identical bill in that chamber on Tuesday, though it’s unlikely to get a vote while Republicans remain in control.
Following the vote, Schumer moved to schedule a procedural vote next week on legislation that would guarantee access to in vitro fertilization.
Schumer said during a press conference afterward that vote would give Americans an opportunity to “see where Republicans stand on the so very important issue” of reproductive rights.
Supreme Court opinion
Supreme Court Associate Justice Clarence Thomas stirred up concerns about access to contraception two years ago when he wrote a concurring opinion in the Dobbs case.
Thomas wrote that the justices should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
None of the other nine justices joined Thomas in writing that opinion, likely signaling they didn’t agree with some or all of it.
The 1965 Griswold v. Connecticut case was the first time the court recognized that married couples’ constitutional privacy rights extend to decisions about contraception. That ruling struck down a Connecticut state law that barred access to contraceptives.
The Supreme Court, in 1972, extended the right to make private decisions about contraception to unmarried people in the Eisenstadt v. Baird ruling.
Following the release of Thomas’ concurring opinion, Democrats and reproductive rights organizations immediately began pressing for federal laws that would reinforce current contraception access. Congress has not passed any so far.
Mini Timmaraju, president and chief executive officer of Reproductive Freedom for All, said during a press conference with Senate Democrats on Wednesday before the vote that women should talk with their mothers and grandmothers about when they were first able to obtain birth control.
“When we talk about the generations of women in this country who didn’t have access to birth control, we’re just talking about my mother’s generation — 1965,” Timmaraju said. “It was not that long ago and that should really be a wake-up call.”
White House, Biden campaign weigh in
The Biden administration signaled its support for Senate Democrats’ bill hours before the vote, writing in a Statement of Administration Policy the measure “would protect the fundamental right to access contraception and help ensure that women can make decisions about their health, lives, and families.”
“Women must have the freedom to make deeply personal health care decisions, including the right to decide if and when to start or grow their family,” the policy states. “Now is the time to safeguard the right to contraception once and for all.”
The Biden-Harris campaign held a press call on reproductive rights Wednesday morning to highlight the differences between the presidential candidates on reproductive rights, including access to abortion, contraception and in vitro fertilization.
Biden-Harris Campaign Manager Julie Chavez Rodriguez said during the call that Donald Trump, Republicans’ presumptive nominee for president, couldn’t be further away from Biden on access.
Rodriguez said Trump’s comments during an interview with TIME magazine in April and his statements to a local Pennsylvania TV news station in May show he’s not supportive of women’s reproductive rights.
Decisions about contraception, abortion and in vitro fertilization belong to women and their doctors, “not politicians and the government,” Rodriguez said.
North Carolina Democratic Gov. Roy Cooper, a member of the Biden-Harris campaign’s advisory board, said on the call this year’s election will be a “defining moment” for the country.
Republican efforts to restrict access to reproductive health care, he said, mean they are trying to “control women.”
Ernst alternative proposal
Iowa Republican Sen. Joni Ernst said during debate on the bill that Democrats’ legislation went too far and pressed for the Senate to take up a bill she introduced earlier this week.
The measure has since gained nine co-sponsors including Chuck Grassley of Iowa, Shelley Moore Capito of West Virginia, Steve Daines of Montana, Todd Young of Indiana, Thom Tillis of North Carolina, Ted Cruz of Texas, Mitch McConnell of Kentucky, James E. Risch of Idaho and John Cornyn of Texas.
Iowa Republican Rep. Ashley Hinson plans to introduce the companion bill in the House, according to an announcement from Ernst’s office.
“With my bill, we’re ensuring women 18 and over can walk into any pharmacy, whether in Red Oak, Iowa, or Washington, D.C., and purchase a safe and effective birth control option,” Ernst said. “This Republican bill creates a priority review designation for over-the-counter birth control options to encourage the FDA to act quickly.”
Ernst said she was “encouraged” that one over-the-counter oral contraceptive has been approved and is available, but that should be “just a starting point.”
The four-page bill would encourage the U.S. Food and Drug Administration to approve additional over-the-counter oral contraceptives and “direct the Comptroller General of the United States to conduct a study on federal funding of contraceptive methods.”
The legislation would require the secretary of the Health and Human Services Department to give priority review to a supplemental application for oral contraceptives “intended for routine use.” But it does not extend that to “any emergency contraceptive drug” or “any drug that is also approved for induced abortion.”
Access to over-the-counter oral birth control that receives FDA approval so that it no longer requires a prescription would be available for people over 18.
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Written by Jennifer Shutt. Cross-posted from the Kentucky Lantern.
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