House passes bill to protect access to contraceptives after Supreme Court warning shot

The House passed a bill on Thursday to safeguard access to contraceptives, less than a month after Supreme Court Justice Clarence Thomas said the bench should overturn the landmark case protecting forms of birth control.

The legislation, titled the Right to Contraception Act, passed in a 228-195 vote. Eight Republicans joined all Democrats in supporting the measure, and two Republicans voted present.

GOP “yes” votes came from Reps. Liz Cheney (Wyo.), Brian Fitzpatrick (Pa.), Anthony Gonzalez (Ohio), John Katko (N.Y.), Adam Kinzinger (Ill.), Nancy Mace (S.C.), Maria Elvira Salazar (Fla.) and Fred Upton (Mich.). Reps. Bob Gibbs (R-Ohio) and Mike Kelly (R-Pa.) voted present. Six Republicans did not vote. 

It remains unclear if the bill will garner the GOP votes it needs to clear the evenly divided Senate.

The measure seeks to codify access to contraceptives on the federal level, allowing individuals to obtain and use birth control and safeguarding a health care provider’s ability to supply such products.

Contraceptives protected under the legislation include oral and emergency medications, intrauterine devices and condoms.

Additionally, the bill authorizes the attorney general, health care providers and other individuals to take civil action against any states that violate the provisions of the bill

Rep. Kathy Manning (D-N.C.) introduced the legislation last week as a direct response to the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the 1973 landmark case that made access to abortion a constitutional right.

In a concurring opinion, Thomas — considered by some to be the most conservative justice on the court — signaled that abortion may not be the only constitutional right on the chopping block, calling on the bench to “reconsider” all substantive due process precedents. He specifically listed, among others, Griswold v. Connecticut, the 1965 ruling that secured the right for married couples to use contraceptives.

Thomas said the court has “a duty to ‘correct the error’ established in those precedents.” The majority opinion written by Justice Samuel Alito, however, said “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Nevertheless, Thomas’s opinion set off alarm bells in Democratic circles across the country and motivated lawmakers on the left to take legislative action as a precautionary measure to potential precedent reversals.

“It is outrageous that nearly 60 years after Griswold was decided, women must once again fight for fundamental freedom to determine the size and timing of their families. … But as Republicans turn back the clock on contraception, Democrats today are making it clear: We are not going back,” Speaker Nancy Pelosi (D-Calif.) said during debate on the House floor Thursday.

“The associate justice of the court has been clear: We’ve only just begun to overturn women’s rights and individual freedom and privacy when it comes to interaction among us all,” she later added.

Manning on the House floor said, “We will not play defense anymore; this time we’re playing offense.”

“Let’s be clear: This bill is about allowing women the freedom to choose the contraception that works best for them, to allow them to prevent unintended pregnancies. American women, indeed all Americans, deserve the freedom to make their own decisions about their bodies, their family planning, and their lives,” she added.

Republicans, however, used debate Thursday to argue that the legislation was rushed to the floor — Democrats introduced it on Friday and first debated it Monday — and describe the measure as superfluous.

Some also contended that the bill would protect contraceptives not approved by the Food and Drug Administration (FDA), based on how the measure defines them.

“First, this bill is completely unnecessary. In no way, shape or form is access to contraception limited or at risk of being limited,” Rep. Kat Cammack (R-Fla.) said during debate on the House floor.

“The liberal majority is clearly trying to stoke fears and mislead the American people once again because in their minds stoking fear clearly is the only way that they can win,” Cammack added.

Republicans have put forward their own contraceptives bill. GOP Reps. Mariannette Miller-Meeks (Iowa) and Ashley Hinson (Iowa) introduced legislation this week that would allow oral contraceptives approved by the FDA to be obtained over-the-counter.

Miller-Meeks made the case for her bill on the House floor during debate on Thursday, arguing that over-the-counter contraceptives can help prevent abortions.

“One of the best ways we can prevent abortions is to increase access to contraception. Research has shown us time and time again that if you make it easier for women to access oral contraceptive, you lower the rate of unplanned pregnancies,” she said. “Providing over-the-counter contraceptives is safe and effective for women.”

The Right to Contraceptive Act is the fourth piece of legislation the House has passed in response to the Dobbs decision.

The chamber cleared a pair of bills last week to protect access to abortion, and on Tuesday a bipartisan group of lawmakers approved a measure to protect marriage equality.

The marriage equality bill, dubbed the Respect for Marriage Act, was also a reaction to Thomas’s concurring opinion. In it, the conservative justice also said the bench should reverse Lawrence v. Texas, the 2003 ruling that prohibited states from outlawing consensual gay sex, and Obergefell v. Hodges, the 2015 case that protected same-sex marriage as a constitutional right.

The abortion bills face steep odds in the Senate because of Republican opposition.

On the marriage equality front, however, a number of GOP senators have expressed support for the measure. Whether it is enough to overcome the 60-vote legislative filibuster, however, remains to be seen.

—Updated at 1:03 p.m.