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Contraception access, threatened in concurring opinion, shored up in House

After Justice Thomas specifically singled out birth control access last month, Democrats want the right codified in federal law.

WASHINGTON (CN) — The House voted Thursday to enshrine access to contraception into federal law, the latest move by Congress to protect constitutionally understood rights in the wake of the Supreme Court's decision to overturn Roe v. Wade.

The Right to Contraception Act, which passed the chamber by a vote of 228-195, would guarantee the federal right to contraceptives that was first declared in the Supreme Court's decision in Griswold v. Connecticut.

It would ban states from restricting access to the pill, IUDs and emergency contraceptives while also giving both the attorney general and medical providers the authority to bring civil lawsuits against governments that restrict contraception access.

The legislation comes three weeks after the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that the high court decision providing the right to an abortion was "egregiously wrong from the start," rescinding a federal right that had been guaranteed for nearly 50 years.

Several states immediately enacted abortion bans in response to the ruling, with some states considering restrictions on birth control, particularly morning-after pills such as Plan B, now that their state laws define life as beginning at conception.

In Missouri, a series of hospitals and urgent care clinics temporarily halted distribution of Plan B out of concern that the state's abortion ban also outlawed emergency contraceptives. The governor and state attorney general have since clarified that the ban does not extend to contraception.

While the majority opinion in Dobbs targeted abortion access, a concurring opinion from Justice Clarence Thomas has rattled Democratic lawmakers about the precariousness of other rights provided by the Supreme Court.

"For most of our lives, women across our country, including most in this room, have relied on birth control to exert control over their own future. And yet today, in the year 2022, many of those women are wondering if they will see that control disappear," Democratic Representative Angie Craig of Minnesota said on the House floor Thursday.

In his opinion, Thomas proposed the high court reconsider contraception access and other constitutionally provided rights to privacy including marriage equality, as established in Obergefell v. Hodges, and the right to sexual relations, as established in Lawrence v. Texas.

“In future cases, we should reconsider all of this court’s substantive due process precedents, including GriswoldLawrence, and Obergefell,” Thomas wrote in his concurring opinion. “Because any substantive due process decision is ‘demonstrably erroneous’ we have a duty to ‘correct the error’ established in those precedents.”

Majority Leader Steny Hoyer said Thomas' musings put contraception access in jeopardy.

"This is about freedom. This is about individual integrity. And this will show the American people where members stand on this question of whether it should continue to be legal for people in this country to pursue family planning," Hoyer said on the House floor.

Several House Republicans criticized the bill as unnecessary, alleging that contraception access was not under threat.

"This bill is completely unnecessary in no way shape or form is access to contraception limited or at risk of being limited. The liberal majority is clearly trying to stoke fears and mislead the American people once again," Representative Kat Cammack of Florida said on the House floor.

Earlier this week, all House Democrats and 47 Republicans voted to codify the freedom to marry into federal law through legislation — a bill that would ensure the right to same-sex marriage would remain even if the high court one day overturns its 2015 decision in Obergefell v. Hodges.

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