The Fight Against Birth Control Is Already Here
Ever since the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, progressive commentators have worried about whether the right to contraception will be in jeopardy next. Republicans largely dismiss these arguments as political fearmongering: There is no mass movement against contraception equivalent to the anti-abortion movement, they argue, and Republicans in some states have actually pushed expanded access to contraception.
But the concerns about birth control’s fate don’t seem so far-fetched anymore. Last week, the 5th Circuit Court of Appeals handed a major victory to Jonathan Mitchell, the former Texas solicitor general who has masterminded many of the key post-Dobbs anti-abortion strategies, in a case on birth control that offers a chilling sign of things to come. As I write with Naomi Cahn and Maxine Eichner in an article forthcoming in the Michigan Law Review, conservatives have used arguments about parental rights to attack actions pertaining to school programs on race, sexuality, and gender identity—and to limit travel for abortion. Now, Mitchell is hoping to use a similar strategy to start undermining access to contraception.
The case involves Alexander Deanda, a conservative Christian father angry that the Title X family planning program theoretically allowed his three daughters to confidentially access contraceptive services before turning 18. Since it passed in 1970, Title X has ensured all patients, including minors, access to confidential care, recognizing that this guarantee can affect minors’ choices. Deanda, who did not like this prospect, complained about how the Biden administration was administering Title X, saying it violated his right under both Texas law and the U.S. Constitution to stop his underage daughters from getting birth control without his consent.
There were two problems with his arguments. The first was that Deanda was looking for a reason to be in court rather than suffering a real injury. He admitted that none of his children had obtained or even tried to get birth control without his consent.
That was no problem for the 5th Circuit, which reasoned that the Biden administration’s administration of Title X “obliterated” Deanda’s right to consent, even if there was no realistic chance that his daughters were ever going to seek out birth control services in the first place.
This is no surprise. The 5th Circuit has accepted strikingly weak arguments about standing before, including in the abortion pill case, Food and Drug Administration v. Alliance for Hippocratic Medicine, that is being argued before the Supreme Court later this month. There, the 5th Circuit saw no problem with standing when a group of anti-abortion doctors argued merely that they may have to treat patients with complications from the abortion pill mifepristone. The three-judge panel in Deanda reached a similar conclusion.
The Biden administration had a response: Even if the Texas family code recognizes a right for parents to consent to their children’s medical treatment, federal law still trumps state law. Not so, said the 5th Circuit, which reinvented the Texas statute to allow states to require parental consent. No matter that this contradicts an earlier ruling by Robert Bork, a conservative hero in Federalist Society circles. It also opens the door to numerous other state policies mandating that minors get their parents’ approval before accessing birth control. And while the 5th Circuit did not reach a firm conclusion on Deanda’s constitutional claims, it was not hard to see that the court was sympathetic to his broader demands. Deanda’s “right to exercise his Christian belief that his children should abstain from premarital sex,” the court wrote, was part of “our enduring American tradition.”
Deanda is just the start of new efforts to roll back contraceptive access, and these efforts are borrowing from a familiar playbook. Activists and attorneys like Mitchell have already experimented with laws that purport to protect minors from “abortion trafficking” when others assist minors in traveling out of state—or “grooming” when school sex education programs teach anything about sexual orientation or gender identity—while suggesting that minors need protection for a reason: abortion is actually dangerous, for example, or being gay or transgender is undesirable. With birth control, conservatives have drawn on the same playbook to argue that contraceptives are dangerous to minors, increasing their risk of cancer or depression, and that parents have a reason to be concerned about their children beyond a belief that premarital sex is wrong.
Republicans are probably right that states won’t pass direct bans on birth control in the near future, or that anyone will pursue an immediate challenge to the right to contraception recognized in cases like Griswold v. Connecticut. But there may be no need for such a move when some conservatives already insist that drugs commonly marketed as contraceptives, such as the morning-after pill, IUDs, and even the birth control pill, are in fact abortifacients.
But Deanda shows that there is a playbook already in place to limit access to contraception for minors and to stigmatize it as unsafe as well as immoral. Deanda’s argument tells us a lot about what is driving part of this campaign: hostility to sex outside of marriage, for adults as much as for minors. It is only when children’s rights are involved, however, that we are currently hearing the quiet part said out loud.
