Contraception is the New Front of the Anti-Abortion War
Sian Norris reports on how a Texan judge has fired warning shots on restricting access to contraception, a well-rehearsed tactic in the attack on reproductive rights
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When lawmakers come after abortion rights, it’s inevitable that attacks on other healthcare and sexual rights will follow, and the US is no exception.
Six months after the Supreme Court ruled in the Dobbs vs Mississippi case and overruled the nationwide right to safe, legal abortion secured in 1973 by the landmark Roe vs Wade ruling, a Texas judge has fired shots against access to contraception.
Birth control is about to become the latest frontier in the country’s anti-abortion war, as those who want to restrict reproductive rights seek to make it harder and harder for women to have control over their own fertility. If those pushing to restrict access get their way, then women lose one more protection against unwanted pregnancy – be that in a consensual relationship where contraception has failed, or in cases of rape and abuse
Matthew Kacsmaryk was appointed to a Texas federal court by Trump, as part of a raft of appointments of anti-abortion, anti-LGBTQ+ judges across the US. The ambition to create a socially-conservative judiciary was supported by Trump and Pence, enabled by conservative legal charities such as Leonard Leo’s Federalist Society, and funded by radical right interests, as this newspaper has long reported.
Kacsmaryk recently gave his opinion on the Deanda v. Becerra case, a suit that attacks the federal Title X programme. The programme offers grants to health providers that fund voluntary and confidential family planning services to patients including adolescents. It was no surprise that a judge who rails against the 1960s sexual revolution had concluded “the Title X programme violates the constitutional right of parents to direct the upbringing of their children”.
The Deanda v. Becerra involved a religiously-conservative father challenging the Title X programme on the grounds that it would allow his daughters to access contraception without his consent. He claimed the programme must cease all grants to health providers who do not require patients under age-18 to “obtain parental consent” before receiving Title X-funded medical care.
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Bethany Van Kampen Saravia, Senior Legal and Policy Advisor at reproductive rights NGO Ipas, told Byline Times: “The opinion presents a huge threat to young people’s access to contraception. While this case has many legal flaws and should be dismissed, it does pose a significant threat and certainly sends a clear message to red states that access to contraception is on the table and that parental consent requirements and other restrictions to limit care can and should be put forward”.
The precedent has always been that access to contraception, even for under-18s, is a matter of privacy. Even teenagers have a right to privacy and they should be able to access contraception without outside interference – not least because a parent could be an abuser.
However, in conservative and far-right circles, the right to a child’s privacy is contested. The right sees patriarchal authority over women and children in the family as supreme – above the state, and definitely above outside influences such as teachers and medical professionals. This also explains, for example, the right’s objection to various aspects of education including sex education – it is seen as usurping parental authority.
Further, the decision shows the influence of the overruling of Roe on future legal opinions about sexual and reproductive rights. Roe vs Wade was based on the right to privacy – that discussions about abortion were a private matter between a woman and her doctor. Attacking access to contraception is another example of attacking the right to privacy and undermining healthcare confidentiality.
Kacsmaryk’s actions show there’s a determined conservative section of the US judiciary that has rid states of abortion, and wants to do the same for contraception.
Disinformation and Deceit
It would perhaps be logical to think that those who are anti-abortion would be in favour of contraception. After all, if pregnancy can be prevented, then fewer women would need abortions. But this is to fundamentally misunderstand the anti-abortion movement’s aim: to deny women’s freedoms and agency, and to pin women to reproductive labour.
Abortion bans are about controlling women’s reproduction and sexuality, and so inhibiting access to contraception is the next step in achieving that control.
The main target for the anti-abortion, anti-contraception lobby has been emergency contraception, colloquially known as the ‘morning after pill’. Anti-abortion actors repeat disinformation about the medication which prevents pregnancy, arguing instead that it’s a form of abortion. This disinformation has even reached the UK Parliament, when Conservative MP Jacob Rees-Mogg referred to it as an “abortifacient”. It is not.
In Poland, where abortion is banned in almost all circumstances, legislation came into force in 2017 that inhibited women’s access to emergency contraception, with women and girls in rural areas worst affected. The move was a further attack on women’s rights to control their own fertility.
Disinformation about emergency contraception is also spread by crisis pregnancy centres, as an undercover investigation by this reporter for openDemocracy found.
In the UK, a row erupted over access to emergency contraception in 2017, when it emerged how British retailers charged more for the drug than many other European countries. While many supermarkets reduced the price for the over-the-counter medication, Boots dragged its feet, saying that “we would not want to be accused of incentivising inappropriate use”.
But making contraception easily available does not “incentivise inappropriate use”. It allows women to exercise their reproductive rights. The argument made by Boots positioned women’s sexual health as a “moral” issue, and suggested that women are not capable of making sensible and informed choices about their contraceptive options.
The latest attempt to restrict access to contraception follows the 2014 Supreme Court case in the US that ruled a Christian-owned company can claim a religious exemption to a law requiring employers to pay for their workers’ contraception. The owners of craft chain Hobby Lobby and others argued that paying for contraception via workplace healthcare plans violated their religious beliefs.
The Hobby Lobby victory normalised the view that contraception such as the Pill – legal for all women in the USA since 1972 – is in direct conflict to holding and expressing religious beliefs. That supposed conflict of rights creates an atmosphere of both medical and moral suspicion around contraception. This suspicion is designed to inhibit a woman’s access and right to reproductive healthcare.
Further, it sought to link contraception in people’s minds with abortions. It sent a clear message that anyone who is anti-abortion should be anti-contraception too, conflating the two in what is a dangerous piece of misinformation.
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The US religious freedom giant Alliance Defending Freedom (ADF) was involved in the Hobby Lobby case, including by submitting an amicus curiae to the Supreme Court. The organisation aims to change the culture – and it achieved this in part with Hobby Lobby by shifting attitudes by making contraception incompatible with religious freedom. The freedoms of women became submissive.
ADF has supported moves to ban abortion in the US, including by providing funding to the employers of the architect of the Texas abortion ban, which later helped to overrule Roe vs Wade.
According to its website, “ADF was honoured to serve on the Mississippi team defending the law at the Supreme Court in Dobbs v. Jackson” – the case that ended nationwide safe, legal abortion in the US.
“It is important to remember that the same people who worked to overturn Roe v. Wade for 50 years are the same people who now seek to make it more difficult for people to access contraceptive care,” said Van Kampen Saravia. “And they will do that by working incrementally to add more and more barriers to care knowing that these restrictions will be challenged in court and eventually work its way up to the Supreme Court”.
“States are more emboldened to attack fundamental human rights,” she added. “The flood gates have been opened by the Dobbs decision”.