Access to contraception

• Author: Lettie Rose/Suzie McKelvey/Jessica Flynn/Hattie Phelps/Hannah Yozzo
• Pages: 265-296

ACCESS TO CONTRACEPTION

EDITED BY LETTIE ROSE, SUZIE MCKELVEY, JESSICA FLYNN, HATTIE PHELPS,

AND HANNAH YOZZO

I. INTRODUCTION.......................................... 265

II. PRESCRIPTION BIRTH CONTROL AND EMERGENCY CONTRACEPTION:

A HISTORY ............................................ 266

A. TYPES OF CONTRACEPTION DEFINED ....................... 266

B. THE RIGHT TO ACCESS TO CONTRACEPTION . . . . . . . . . . . . . . . . . 270

C. THE PATIENT PROTECTION AND AFFORDABLE CARE ACT ........ 272

III. BARRIERS TO ACCESS TO CONTRACEPTION ...................... 273

A. REFUSAL CLAUSES AND RELIGIOUS OPPOSITION ............... 274

1. The Social and Legal Controversy Surrounding

Contraception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274

2. The History of Refusal Clauses . . . . . . . . . . . . . . . . . . . . 276

3. Anti-Discrimination vs. Employers’ Religious Opposition 277

4. Hobby Lobby and Its Aftermath . . . . . . . . . . . . . . . . . . . . 279

5. Little Sisters of the Poor v. Burwell . . . . . . . . . . . . . . . . . 281

B. EFFORTS TO INCREASE OR RESTRICT ACCESS TO CONTRACEPTION . . 282

1. Over-the-Counter Accessibility . . . . . . . . . . . . . . . . . . . . 282

2. Refusal Clauses and Medicaid Restrictions . . . . . . . . . . . 286

3. Regulation of Abortifacients . . . . . . . . . . . . . . . . . . . . . . 289

C. GROUPS FACING HEIGHTENED BARRIERS TO ACCESS ........... 290

1. Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

2. Low-Income Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

3. Other Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294

IV. CONCLUSION ........................................... 295

I. INTRODUCTION

In the 1965 case Griswold v. Connecticut, the United States (U.S.) Supreme

Court struck down a state law that prohibited married couples from obtaining and

using contraception as a violation of a marital right to privacy.

1

Through

Griswold’s progeny, the Court explained that all individuals, regardless of marital

status, have a fundamental right to privacy that encompasses access to contracep-

tion.

2

However, although the legal and societal landscape has greatly changed

since 1965, many individuals still face a myriad of barriers in accessing contra-

ception.

3

The modern debates surrounding contraception access entail a delicate

1. Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965).

2. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Carey v. Population Servs. Int’l, 431 U.S. 678,

687 (1977).

3. See infra Part III.

265

balancing act between the conflicting rights of various groups: pro-abortion and

anti-abortion, health care providers and patients, and employers and employees.

The refueled controversy surrounding contraception, sparked by the Patient

Protection and Affordable Care Act’s (PPACA) requirements and cases like

Hobby Lobby,

4

continues to drive a national debate over religious freedom, perso-

nal autonomy, and access to medical care. The precise extent of the freedom to

refuse contraception coverage due to religious objections remains the subject of

litigation, particularly in light of the Supreme Court’s 2022 decision in Dobbs v.

Jackson Women’s Health Organization, which overturned Roe v. Wade.

5

Although Griswold remains intact under the Dobbs decision, the dissenting

Justices in Dobbs note that the legal justifications for the majority’s decision

could destabilize the rights provided under Griswold if challenged in the future.

The precise extent of the freedom to refuse contraceptive coverage due to reli-

gious objections remains the subject of litigation.

This Article provides an overview of the right to access to contraception, be-

ginning with the definitions of different types of contraception in Part II.A, a sum-

mary of the history of the right to access to contraception in Part II.B, and a

discussion of recent developments since the passage of the PPACA in Part II.C.

Part III discusses barriers to access that people who can become pregnant still

face, including refusal clauses

6

Refusal clauses are statutes that protect healthcare providers from liability if they refuse to

dispense contraception based on their religious or moral opposition. Refusal Laws: Dangerous for

Women’s Health, NARAL PRO-CHOICE AM. (Jan. 1, 2017), https://perma.cc/Q73N-TPFE [hereinafter

NARAL: Refusal Laws].

and religious opposition in Part III.A, recent

efforts to increase or restrict access in Part III.B, and the heightened barriers faced

by particular groups in Part III.C.

II. PRESCRIPTION BIRTH CONTROL AND EMERGENCY CONTRACEPTION: A HISTORY

To better understand the history of prescription birth control and emergency

contraception (EC), this section will discuss (A) various types of birth control

and EC, (B) the right to access contraception generally, and (C) the current state

of the PPACA.

A. TYPES OF CONTRACEPTION DEFINED

People in the U.S. use a variety of contraception methods to aid in family plan-

ning and the prevention of unplanned pregnancy. Data suggests that as of 2018,

there are approximately seventy-three million women of reproductive age in

the U.S., forty-six million of whom are sexually active and do not

4. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

5. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2331–32 n.9 (2022) (Breyer, Sotomayor

& Kagan, JJ., dissenting).

6.

266 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:265

want to become pregnant.

7

Fact Sheet: Contraceptive Use in the United States, GUTTMACHER INST. (May 2021), https://

perma.cc/4PY2-P4TQ [hereinafter Contraceptive Use in the United States].

Among women of reproductive age, approximately

65% are currently using contraception and over 99% of those who are sexually

experienced have used at least one contraceptive method at some point in time.

8

Of the women who currently use some form of contraception, 72% use nonper-

manent methods, primarily condoms, intrauterine devices, and/or other hormonal

methods, including pills, patches, and vaginal rings.

9

Emergency contraception is

also widely used among women of reproductive age; 2015 data suggests that

approximately 23% of sexually-experienced women of reproductive age have

used EC pills at some point in time.

10

Id. (citing Rubina Hussain & Megan L. Kavanaugh, Changes in use of emergency contraceptive

pills in the United States from 2008 to 2015, CONTRACEPTION: X (2021), https://perma.cc/4S7Y-68WT).

Prescription birth control is a dose of hormones prescribed by a healthcare

provider for use on a regimented basis by a person who can become preg-

nant.

11

Birth Control, U.S. FOOD & DRUG ADMIN., https://perma.cc/W982-VFSA (last updated Dec. 23,

2022) [hereinafter Birth Control Medicines to Help You].

One form of prescription birth control is oral contraception, or “The

Pill,” which prevents ovulation by thickening the cervical mucus in order to

block sperm.

12

While most people who can become pregnant using contraception in the U.S.

still prefer the Pill, implantable contraceptives are also becoming increasingly

popular.

13

Some implantable contraceptives are inserted under the skin by a li-

censed medical professional, where they can remain for years.

14

Birth Control Implant, PLANNED PARENTHOOD (2022), https://perma.cc/XVT2-9J4Z.

They can be

removed by a licensed medical professional at any time.

15

Three common forms

of subdermal implantable contraception—Implanon, Norplant, and Jadelle—

have been found to be extremely effective and easy to use.

16

Bahamondes L., Subdermal implantable contraceptives versus other forms of reversible

contraceptives or other implants as effective methods of preventing pregnancy: RHL Commentary,

WORLD HEALTH ORG. REPROD. HEALTH LIBR. (Dec. 1, 2008), https://perma.cc/U9CM-HQUF.

All three carry a low

risk of side effects, though rare cases of bleeding disturbances and certain

related side effects may occur.

17

Good patient counseling efforts regarding

these forms of contraception, including a discussion of potential side effects, is

important to ensure high continuation rates, because the acceptability of side

effects like irregular bleeding may differ across cultures.

18

Overall, however,

7.

8. Id.

9. Id.

10.

11.

12. Id.

13. Contraceptive Use in the United States, supra note 7.

14.

15. Id.

16.

17. Id.

18. Id.

2023] ACCESS TO CONTRACEPTION 267