This week, the U.S. Senate took up legislation that purports to protect an individual’s right to contraceptives. Both Democrats and Republicans disagree on whether Senate Bill 4381 is needed, but there has been a push to codify contraceptive rights since the Supreme Court’s 2022 decision in Dobbs.
Laying to rest fears about sea changes in reproductive law is a worthy legislative endeavor. But it needs to be done with sensitivity to our constitutional design. And with this single act, Congress would invalidate some law in almost every state in America, unnecessarily running roughshod over parental rights and religious freedom protections.
The law, as considered by the Senate, would give individuals a “statutory right to … obtain contraceptives … free from coercion,” and it gives health care providers “corresponding right(s)” to provide contraceptives. It “supersedes” all federal and state law, “whether adopted before or after” the bill’s enactment. And it bars states from doing anything that “prohibits or restricts the sale, provision, or use of any contraceptives” — whether by law, rule or enforcement.
Significantly, in an act of Congress, the word “individual” means everyone — children and adults.
The word “child” appears nowhere in SB4381. Nor does the word “parent.”
The bill, therefore, establishes a minor’s right to contraception, despite the fact that 24 states give parents some say in contraception for their children, and the Supreme Court has long recognized the “interest of parents in the care, custody and control of their children.” Parental rights, the court has said, are “perhaps the oldest of the fundamental liberty interests.”
Of the 24 states that give parents some say in contraception, some allow minors to consent if a doctor makes a referral, as Illinois and Mississippi do. Some make exceptions from the normal parental-consent rule when a minor is married, as Connecticut and 16 other states do; when a minor is already pregnant, as New Jersey and three other states do; or when a minor is already a parent, as Illinois does. Some make special allowances for mature minors, as New Hampshire and three other states do; high school graduates, as Alabama does; or those referred by clergy, as Illinois does.
These rules are not culture-war measures. In Utah, married minors can decide without parental consent because they have reached an important marker of adulthood. Courts in family matters routinely give voice to mature minors. These laws have served the people of these states well by striking a balance between the autonomy and privacy of minors and the rights of their parents. If the policy balances struck by state legislatures after hearing from the citizens of their states prove unworkable, those citizens can ask for changes and be heard. In statehouses, ordinary people come and express their views. Hearings in Congress, in contrast, are full of “experts” and invited witnesses, not ordinary people.
The regulation of intimate family decision-making is not uniform across America and does not have to be. The states are proven laboratories of experimentation, and this is a great strength of our federal system.
These laws on contraceptive policy were not passed in a frenzy after Dobbs. Failing to notify a minor’s parent has been a misdemeanor in Utah since 1983. Illinois’ laws on decision-making by minors and parents date to 1999.
The Senate bill tramples on prized liberties, specifically parental rights, and upends our constitutional process. States are closest to families and family matters and are best suited to make the policy decisions about the delicate interplay of health care decision-making within the family. Congress should trust their counterparts in statehouses to continue to do the important work reserved to the states.
More explosive than overriding state-level contraceptive policy, however, is the bill’s inclusion of “emergency” contraceptives.
Buried in the text of the bill is what precisely counts as a contraceptive. Only those with access to a law library would know that drugs like Plan B OneStep — part of the drug family at the heart of the Hobby Lobby Supreme Court case — and IUDs like Mirena all would receive protection under this bill. The labels for these drugs say that “alterations to the endometrium … may affect implantation.”
In other words, they may act as abortifacients.
Thirty-six states have laws requiring parental notification or consent to abortion. Many laws are nuanced — they recognize the fear children might experience and permit a judge to consent if a minor “cannot obtain a parent’s consent.” But parental consent to abortion has been sustained as constitutional for decades. In fact, three decades before Dobbs, in Planned Parenthood v. Casey, the Supreme Court upheld Pennsylvania’s law requiring parental consent.
The Senate bill implicates the rights of health care providers, too. Some providers, for religious reasons, are morally torn about dispensing drugs that they see as ending a life. Since 1973, weeks after Roe, federal law has given providers the right to step aside from dispensing such drugs. Legislation in a dozen states protects objections around contraception. These laws have served progressive states like Colorado and Maine, as well as states seen as socially conservative like Idaho and Tennessee.
The upheaval that Congress is flirting with does not stop there. Nearly every state in America — 46 — protects objections to facilitating abortions. Under these laws, no provider is required to facilitate an abortion if they find it religiously or morally objectionable and, with appropriate safeguards, no patient is denied a service. Health care conscience clauses have long represented a détente in our continuing culture war around abortion.
True, people disagree about whether a drug that affects implantation should count as an abortifacient. But there is no reason to revisit the careful accords around abortion in a law about ordinary contraceptive access.
Congress did not wreak such havoc in the Affordable Care Act. Congress went to great lengths to leave intact abortion conscience clauses like the Church Amendment. Not so with the current bill, which displaces federal and state conscience protections with regard to these drugs.
Finally, the Senate bill would also bar Americans from asserting that the legislation burdens their religious freedom. If enacted, it would be the first federal law to preclude Americans from the protections of the federal Religious Freedom Restoration Act, and it would shove aside state level protections for religious freedom as well.
Utah enacted a state RFRA this session to backstop freedoms. As our administrative state grows more complex, many laws inadvertently burden the ability of people of faith to live authentically.
Congress should go back to the drawing board. It should reach across partisan lines and govern in everyone’s interest, as it did with the landmark Respect for Marriage Act. Congress should take minors out the equation, leaving in place the dozens of state laws carefully crafted around decision-making in the family. Lawmakers should leave emergency contraceptives to the side or leave the federal and state conscience protections in place.
We are at a bipartisan juncture. We can come together and govern, or continue to fracture.
Robin Fretwell Wilson holds the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law.