The House on Thursday passed the Right to Contraception Act by a final vote of 228-195. The vote was split mostly on party lines, with 220 Democrats and only eight Republicans voting in favor of the bill. It’s still unclear if the Senate will bring the bill forward for a vote.
The legislation was rushed through because of a comment made by Justice Clarence Thomas in his concurring opinion in Dobbs v. Jackson. Despite the majority opinion insisting that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Justice Thomas wrote that the Supreme Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.”
In the case of Griswold v. Connecticut (1965), the court ruled that “right to privacy” can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal. Justice Thomas’ point is that the constitution does not include such a “right to privacy” and that the issue should be resolved by the legislature.
The stated purpose of the bill is, “To protect a person’s ability to access contraceptives and to engage in contraception, and to protect a health care provider’s ability to provide contraceptives, contraception, and information related to contraception.” If this was the actual effect of the bill, it would not be controversial for most Americans—including Protestant Christians, who believe that contraception is a matter of conscience and hold diverse views on the subject.
However, there are two primary concerns with this legislation. The first is that the bill’s definition of “contraception” is so broad it could be used to include potential abortifacients. The second is that it imposes a substantial threat to religious liberty.
Potential mislabeling of contraceptives
The purpose of contraceptives is to prevent conception (hence the term “contra”— against conception). The scientific understanding of conception is that it occurs at fertilization. Therefore, the historical meaning of contraceptive—and the one still used by pro-lifers—is any method that prevents fertilization.
However, in 1972 the American College of Obstetricians and Gynecologists changed the definition of conception to mean implantation of the embryo into the wall of the mother’s uterus. As physician Megan Best has explained, under the new definition, any device that prevented the embryo from implanting in the uterus could be marketed as a contraceptive.
“This change of definition means there are two classes of contraceptives,” says Dr. Best, “those that work before fertilization, the classic definition, and prevent the sperm from joining with the egg; and those that cause an early abortion by acting after fertilization.”
The Right to Contraception Act directly states that for the purposes of the law ‘‘’contraceptive’’’ means any device or medication used to prevent pregnancy” and includes any contraceptive devices approved by the U.S. Food and Drug Administration (FDA). The law would not allow states to determine that, to protect the consciences of its citizens, they will err on the side of caution and disallow any contraceptives that might have an abortifacient effect. Instead, the bill, as written, not only allows the FDA sole authority to make such a determination, but also makes it possible for any abortifacient to be automatically protected if the regulatory agency classified it as a “contraceptive.”
The threat to religious liberty
The law also is a threat to religious freedom in general, and the Religious Freedom Restoration Act (RFRA) in particular.
The RFRA is a federal law passed in 1993 that is intended to prevent other federal laws from substantially burdening a person’s free exercise of religion. The RFRA states that the government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless it is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. A person whose religious exercise has been burdened in violation of this law may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.
The most high-profile federal case that relied on RFRA was the 2014 case Burwell v. Hobby Lobby Stores, a challenge to the Affordable Care Act’s Health and Human Services (HHS) contraceptive mandate that required all for-profit companies to cover abortion-inducing drugs—even against the religious objections of these businesses’ owners.
The Right to Contraception Act would bring back issues that were resolved in the Hobby Lobby case. The act would not only supersede any state laws, but would take precedence over any “other provision of Federal law, including the Religious Freedom Restoration Act of 1993.”
Many politicians and citizens—including pro-lifers and religious liberty advocates—will likely support the legislation because of the mistaken impression it merely protects the use of contraceptives. But the bill needs substantial revision before it should be allowed to pass the Senate. As we enter the new phase of in the post-Dobbs era, Christians need to extra vigilant as abortion supporters will attempt to pass harmful legislation, such as this, under the guise of it being a noncontroversial measure. The ERLC is opposed to this bill, and all legislation that does not protect life and religious liberty, and is committed to advocating against its passage in the Senate.
Brent Leatherwood, the ERLC’s acting president, said this about the bill,
“While from a distance this legislation may seem innocuous, a review of the details reveals It to be nothing less than an affront to religious liberty. I realize some congressional leaders are lashing out in any number of ways following the Dobbs decision, but to create a carve out of RFRA protections and a pathway for paving over consciences that have sincere religious objections is simply extreme. I would once again implore our policymakers to focus on ways to develop a culture of life where lives are saved, mothers are served, and families are supported.”