TDD #14: The Right to Contraception Act (Part 3)

The Right to Contraception Act (H.R. 8373)

Earlier this week, the?House of Representatives of the U.S. Congress?passed the?Right to Contraception Act.

Here's a link to the full text:

This bill, called?H.R. 8373, was introduced by Representative Kathy Manning (Democrat - NC) on?July 14, 2022. It was put to a vote on?July 21, 2022, after a one hour floor debate.

Here's a summary of the bill, per the link above (their words, not mine):

This bill sets out statutory protections for an individual's right to access and a health care provider's right to provide contraception and related information.?

Contraception?refers to an action taken to prevent pregnancy, including the use of contraceptives (i.e., a device or medication used to prevent pregnancy), fertility-awareness based methods, and sterilization procedures.

Generally, the bill prohibits measures that single out and impede access to contraception and related information. However, a party may defend against a claim that a measure violates the bill's prohibitions by demonstrating, through clear and convincing evidence, that the measure significantly advances access to contraception and cannot be achieved through less restrictive means.

The Department of Justice, individuals, or health care providers may bring a lawsuit to enforce this bill, and states are not immune from suits for violations.

Let's keep unpacking ...

The?Right to Contraception Act, is organized as follows:

Preamble

Section 1: Short Title

Section 2: Definitions

Section 3: Findings

Section 4: Permitted Services

Section 5: Applicability and Preemption

Section 6: Rules of Construction

Section 7: Enforcement

Section 8: Severability

--

This bill is actually quite short, but it's also quite broad.

By way of background, a different bill, the Access to Birth Control Act (H.R. 6005), was introduced in the House in November 2021 by a different Representative. It was referred to committee right away. No further action has been taken. This is important because it gives us a sense of what a more detailed, or follow up, statute might look like.

Here's a link to that bill of you're into reading draft laws:

We reviewed Section 2: Definitions, yesterday.

Now, we shift to Section 3: Findings. As indicated below, you will note that Congress has included 26 specific findings, or "reasons." I've set them out below.

SECTION 3: FINDINGS

Congress finds the following:

(1) The right to contraception is a fundamental right, central to a person’s privacy, health, wellbeing, dignity, liberty, equality, and ability to participate in the social and economic life of the Nation.

(2) The Supreme Court has repeatedly recognized the constitutional right to contraception.

(3) In Griswold v. Connecticut (381 U.S. 479 (1965)), the Supreme Court first recognized the constitutional right for married people to use contraceptives.

(4) In Eisenstadt v. Baird (405 U.S. 438 (1972)), the Supreme Court confirmed the constitutional right of all people to legally access contraceptives regardless of marital status.

(5) In Carey v. Population Services International (431 U.S. 678 (1977)), the Supreme Court affirmed the constitutional right to contraceptives for minors.

(6) The right to contraception has been repeatedly recognized internationally as a human right. The United Nations Population Fund has published several reports outlining family planning as a basic human right that advances women’s health, economic empowerment, and equality.

(7) Access to contraceptives is internationally recognized by the World Health Organization as advancing other human rights such as the right to life, liberty, expression, health, work, and education.

(8) Contraception is safe, essential health care, and access to contraceptive products and services is central to people’s ability to participate equally in economic and social life in the United States and globally. Contraception allows people to make decisions about their families and their lives.

(9) Contraception is key to sexual and reproductive health. Contraception is critical to preventing unintended pregnancy and many contraceptives are highly effective in preventing and treating a wide array of often severe medical conditions and decrease the risk of certain cancers.

(10) Family planning improves health outcomes for women, their families, and their communities and reduces rates of maternal and infant mortality and morbidity.

(11) The United States has a long history of reproductive coercion, including the childbearing forced upon enslaved women, as well as the forced sterilization of Black women, Puerto Rican women, indigenous women, immigrant women, and disabled women, and reproductive coercion continues to occur.

(12) The right to make personal decisions about contraceptive use is important for all Americans, and is especially critical for historically marginalized groups, including Black, indigenous, and other people of color; immigrants; LGBTQ people; people with disabilities; people with low incomes; and people living in rural and underserved areas. Many people who are part of these marginalized groups already face barriers—exacerbated by social, political, economic, and environmental inequities—to comprehensive health care, including reproductive health care, that reduce their ability to make decisions about their health, families, and lives.

(13) State and Federal policies governing pharmaceutical and insurance policies affect the accessibility of contraceptives, and the settings in which contraception services are delivered.

(14) People engage in interstate commerce to access contraception services.

(15) To provide contraception services, health care providers employ and obtain commercial services from doctors, nurses, and other personnel who engage in interstate commerce and travel across State lines.

(16) Congress has the authority to enact this Act to protect access to contraception pursuant to—

(A) its powers under the Commerce Clause of section 8 of article I of the Constitution of the United States;

(B) its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment; and

(C) its powers under the necessary and proper clause of section 8 of article I of the Constitution of the United States.

(17) Congress has used its authority in the past to protect and expand access to contraception information, products, and services.

(18) In 1970, Congress established the family planning program under title X of the Public Health Service Act (42 U.S.C. 300 et seq.), the only Federal grant program dedicated to family planning and related services, providing access to information, products, and services for contraception.

(19) In 1972, Congress required the Medicaid program to cover family planning services and supplies, and the Medicaid program currently accounts for 75 percent of Federal funds spent on family planning.

(20) In 2010, Congress enacted the Patient Protection and Affordable Care Act (Public Law 111–148) (referred to in this section as the “ACA”). Among other provisions, the ACA included provisions to expand the affordability and accessibility of contraception by requiring health insurance plans to provide coverage for preventive services with no patient cost-sharing.

(21) Despite the clearly established constitutional right to contraception, access to contraceptives, including emergency contraceptives and long-acting reversible contraceptives, has been obstructed across the United States in various ways by Federal and State governments.

(22) As of 2022, at least 4 States tried to ban access to some or all contraceptives by restricting access to public funding for these products and services. Furthermore, Arkansas, Mississippi, Missouri, and Texas have infringed on people’s ability to access their contraceptive care by violating the free choice of provider requirement under the Medicaid program.

(23) Providers’ refusals to offer contraceptives and information related to contraception based on their own personal beliefs impede patients from obtaining their preferred method, with laws in 12 States as of the date of introduction of this Act specifically allowing health care providers to refuse to provide services related to contraception.

(24) States have attempted to define abortion expansively so as to include contraceptives in State bans on abortion and have also restricted access to emergency contraception.

(25) In June 2022, Justice Thomas, in his concurring opinion in Dobbs v. Jackson Women’s Health Organization (597 U.S. __ (2022)), stated that the Supreme Court “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” and that the Court has “a duty to correct the error established in those precedents” by overruling them.

(26) In order to further public health and to combat efforts to restrict access to reproductive health care, congressional action is necessary to protect access to contraceptives, contraception, and information related to contraception for everyone, regardless of actual or perceived race, ethnicity, sex (including gender identity and sexual orientation), income, disability, national origin, immigration status, or geography.

COMMENTARY

For today, just read the findings so you can get your ahead around the intent behind this bill. There's a lot to unpack, and we'll start in earnest tomorrow.

That's a wrap not just for TDD #14.

We'll dive into?Section 3: Findings?tomorrow in?TDD?#15.

--

WANT TO LEARN MORE?

Check out my podcast I Am Roe, Hear Me Roar! ...

For a deeper dive into?Roe v. Wade,?what it says (and doesn’t say), listen to my podcast:?I am Roe, Hear Me Roar!?available on all podcasting apps.?You can also listen, or read the transcripts, on my website here:

Episode 5 is live!

GOT QUESTIONS? Drop them below ...

If you have specific questions, please drop them in the comments.?I’ll do my best to respond directly or in a future edition of?The Dobbs Daily.

Thank you for hanging out with me ... more coming up in?TDD?#14.