Will the Loss of Abortion Rights Impact Access to Birth Control?

Everyday Health spoke to Liz McCaman Taylor, a senior attorney and director of the Contraceptive Equity Initiative at the National Health Law Program (NHeLP), to discuss the legal future of contraceptive access following the overturn of Roe v. Wade.

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young woman grasping birth control pills
With the loss of abortion rights, some forms of birth control may be under threat, too.Dimitri Otis/Getty Images

Everyday Health: I've read that Griswold v. Connecticut (the case that set the precedent for birth control access) could be in jeopardy now that Roe v. Wade has been overturned by the Supreme Court. Why?

Liz McCaman Taylor, JD, MPH: Birth control access is in peril, and it is only partly because Griswold could be overturned. Griswold precedes Roe by almost 10 years — and it sets the stage for Roe — both of the cases involved the liberty guarantee in the 14th Amendment Due Process Clause and privacy rights, because that amendment specifically applies to state actions. Both Roe and Griswold involve state laws that infringed on privacy rights.

EH: So the connection is a privacy issue?

LMT: Yes. The Griswold ruling said that birth control and what happens between a married couple in a bedroom is one of the most private decisions people could possibly make. And then in the '70s with Roe, there was a very similar analysis, while not exactly the same. There is a through-line between the two. The ruling that came out today holds that was that Roe was wrong because abortion is not within the liberty guarantee of the 14th Amendment Due Process Clause.

So if there isn’t a right to abortion, what’s different about contraception that will protect it? Arguably nothing, given the decision today. That is the concern about Griswold.

EH: Is it possible that it could take years for all of this to play out in different courts in different states?

LMT: There is a long game out there to get rid of Griswold, but I think there is a multi-pronged strategy to restrict birth control access.

There is a move to classify some birth control as abortifacients [meaning a substance that induces abortion] and exclude them from the discourse around birth control. This primarily relates to emergency contraception (EC) and copper IUDs. It’s already happening, and it will continue to move rather swiftly. The strategy with Roe was death by a thousand cuts. People who are anti-choice fought to restrict abortion access for decades. It’s not a short game that in a year or so Griswold will be overturned, but states will start chipping away with emergency contraception right away.

EH: Why is emergency contraception such a hot-button issue?

LMT: The reason that conservatives grab onto the idea that emergency contraception is akin to abortion is that they have an idea that taking EC after fertilization and before implantation, destroys life, and that’s how it’s preventing pregnancy. In fact, there is zero evidence that that is how emergency contraception works. Now matter how you slice it, no contraception should be mistakenly classified as abortion.

EH: I can kind of understand how the morning after pill could be scrutinized, but why are IUDs coming under fire, too?

LMT: A copper IUD can be inserted after you have sex, and there is a five day window where it can be used as EC, because the device affects sperm motility and can prevent fertilization.

You can’t technically be pregnant when you get an IUD. You have to confirm that you are not pregnant before it is inserted. So there would be no medical signs of being pregnant if the woman wanted the procedure. There is no ethical way to test what is going on in a woman’s uterus in that way. Science is not on their side of this argument.

EH: Back to the access issue: Is it compromised already?

LMT: Yes. Some states have been debating ways to ban or restrict certain methods of birth control for years, and the ruling today further gives them the green light to go ahead and do that. And it doesn’t even matter if Griswold is overturned. Separate from that case, there are multiple instances of state laws — none have passed this year, but there were attempts — that ban emergency contraception, claiming that it causes abortion.

EH: How fast will women’s healthcare centers that provide birth control be closed down now that Roe is no more?

LMT: Already people will be denied care starting today, and clinics aren’t going to be able to operate for more than a couple of months losing such a huge chunk of their business. So the Planned Parenthood–type clinics won’t be an option to get birth control, and that’s where low-income and uninsured people go.

EH: So economic disparity comes into play?

LMT: Low income people are already facing so many hardships, and an unwanted or unplanned pregnancy is not something we want to force upon people. There are other ways that people can get birth control, but it’s going to be more difficult. If you have a primary care provider, you can potentially get it from apps or by mail order — if you have a stable address it can be sent to.

EH: So what you’re saying is that if you have money, contraceptive access will never be an issue.

LMT: Your access to contraception will not change if you are wealthy. You can travel to a provider that offers all contraceptive options, or you can pay out of pocket. But if you are poor and are on Medicaid, you are now basically at the whim of whatever your state legislature decides your healthcare coverage should be. In places like Texas, there is no coverage for emergency contraception in their low-income family planning program. And if you don’t have insurance at all, you are not set up to have good care. To get an IUD placed, the device itself can be $1,000 and the labor as much as $1,500. Plus, a four-hour drive to another state to get birth control is not going to work for most low-income people.

EH: Are birth control pills in the crosshairs, too?

LMT: At least for the moment, I don’t believe that legally those are under attack. But there will be an access problem for all kinds of birth control and reproductive health services, including hormone therapy for transgender patients.

EH: What can women who live in states with restricted access hope for?

LMT: I wish that I had a really good answer for that. The reality of this decision gives certain states the green light that as an advocate I don’t have any solution for, other than traveling to a sanctuary state for an abortion or certain kinds of contraception. But those states are going to be overrun. California is expecting thousands more patients once women will need to travel there for essential healthcare, and they don’t have staffing for that. And even in more conservative states, there have been more efforts to expand the scope of practice to healthcare workers like nurse practitioners to be able to prescribe contraceptives. This is an important strategy to meet the needs of people who will lose their community health care provider along with their abortion access.

Note: The responses have been lightly edited for length and clarity.