A Democratic effort to codify the right to contraception in federal law sputtered at the Senate on partisan lines Wednesday.
Failure in the tightly divided chamber was predictable, as Democrats attempted to fast-track the Right to Contraception Act by a process called unanimous consent, which allows a bill to go to the floor and pass if all senators agree.
All it took was one Republican objection for the bill to stall out.
One of the bill’s sponsors, Senator Ed Markey of Massachusetts, told reporters on Tuesday that Senate Democrats chose this route in the face of certain defeat because of the urgency that the situation demands.
He doubled down Wednesday. “No abortion, but no birth control to prevent the need for one. That is where the Republican Party is today,” Markey said on the Senate floor.
Markey promised that Democrats will continue to push for a direct vote on the legislation. It passed the House last week in a 228-195 vote.
Today the federal right to contraceptives is accepted in the United States because the Supreme Court decided in the 1965 case Griswold v. Connecticut that married couples have a constitutional right to buy and use contraceptives without government intrusion.
The Right to Contraception Act would enshrine that understanding into federal statutory law. 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.
Only eight Republican members of the House voting in favor of the bill. The party line for the GOP is that the bill is unnecessary, and that there is no threat that the court will overturn the right to contraception.
Senator Joni Ernst of Iowa called the legislation “insidious,” claiming that the bill used an overly broad definition of contraception and could provide funding for abortion providers and “abortion-inducing drugs.”
Democrats consider the writing on the wall for Griswold, however, after Roe was ruled “egregiously wrong from the start” last month by the same conservative justices who testified in their Senate confirmation hearings that Roe was settled law.
“My Republican colleagues saying they have no reason to believe precedent will be overturned is resorting to magical thinking that no one should believe. After all, the Supreme Court just overturned a nearly 50-year precedent,” Hawaii Senator Mazie Hirono, another co-sponsor of the legislation, said Wednesday.
In a concurring opinion about the Supreme Court’s decision to overturn the right to abortion last month, Justice Clarence Thomas specifically called for reconsideration of Griswold and other Supreme Court precedent that established privacy rights.
Thomas, a Black justice whose second wife is white, notably did not mention the Supreme Court’s interracial marriage case, Loving v. Virginia, but singled out other rights based on substantive due process, 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 Griswold, Lawrence, 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.”
Senator Richard Blumenthal rejected the implications made in Thomas’ dissent.
“Let’s be clear, the right to contraception wasn’t stated in the Constitution, but the right to privacy is, at its core — Don’t tread on me, the right to be left alone. That’s the reason that we have the Bill of Rights. That’s the reason why the founders rebelled against England, undue unjustified interference in their personal lives,” the Connecticut Democrat said on the Senate floor Wednesday. “The right to privacy is referred to often as a penumbra, but actually it’s at the core of the Constitution.”
Abortion access across the nation has changed dramatically in the wake of the Supreme Court’s decision, with several states enacting abortion bans, many of which are tied up in legal battles.
Some of these bans define life as beginning at conception, a factor that Democrats worry could endanger access to contraceptives such as Plan B and other morning-after pills.
“If the Supreme Court will not respect this fundamental personal right, you have the right to demand that your member of Congress will,” Senate Majority Whip Dick Durbin, a Democrat from Illinois, said on the Senate floor Wednesday.
Earlier this month, House Democrats failed in a similar unanimous-consent attempt to vote on legislation protecting the right to travel out of state for an abortion.
The Senate has yet to take up another piece of legislation spurred by Thomas’ concurrence: a bill passed by the House last week to codify the freedom to marry into federal law.