Clarence Thomas opinion sparks House vote Thursday to protect access to contraception

The House is scheduled to vote on a bill Thursday that would enshrine federal protection for access to contraceptives as Democrats look to safeguard the right after Supreme Court Justice Clarence Thomas called for the court to review it. 

It’s the second vote this week that is essentially a response to Thomas’s concurrent opinion in a case overturning the Roe v. Wade decision that suggested he also wanted the court to review decisions on same-sex marriage, access to contraception and other issues.

The House passed a bill on Tuesday to codify marriage equality, seeking to ensure that same-sex and interracial couples receive equal protections as other couples under federal law. Every Democrat and 47 Republicans voted in favor of the bill, while 157 Republicans voted against it. 

Now Democrats have set up the vote on contraception, arguing it is necessary given the conservative Supreme Court.

They also want to get Republicans on the record with votes likely to be featured in midterm campaigns this fall.

“As some of our colleagues have said, we want to put the Republicans on record, but we’d like to put them on record in support of contraception,” House Speaker Nancy Pelosi (D-Calif.) said Wednesday at a press conference to promote the Right to Contraception Act.

Pelosi said the risk to contraception access could have a “terrible impact” on communities of color and families across the board. 

“Who are these people who are saying they want to outlaw it? It’s about control. They don’t like birth control, but they want to control women, and we cannot let that happen,” she said. 

In a concurring opinion for Dobbs v. Jackson Women’s Health Organization, the case in which the court overturned the constitutional right to abortion, Thomas said the court should review other substantive due process cases like Griswold v. Connecticut, which established the right to obtain contraception, and Obergefell v. Hodges, which established the right to same-sex marriage. 

The court’s ruling in Griswold preceded Roe by eight years, and legal experts considered it key in setting the foundation for Roe. Other cases that Thomas called for the court to review, like Lawrence v. Texas, which prevented states from banning consensual gay sex, and Obergefell are based on similar legal reasoning to Roe. 

After the court overturned Roe, more than a dozen states moved to ban or severely restrict abortion through “trigger” laws that were set to go into effect once Roe was struck down. 

Some state lawmakers have already begun moving to at least restrict access to certain types of birth control. For states with abortion bans that define life as beginning at conception, legal uncertainty remains on whether Plan B and other morning-after pills could be banned since they are taken after intercourse has occurred. 

Pew Charitable Trusts reported in May that GOP legislators in Missouri attempted to block Medicaid funding from going to specific types of birth control, specifically emergency contraceptives. The effort ultimately failed. 

Rep. Kathy Manning (D-N.C.), who introduced the bill last week, said birth control is “critically important” to women, their ability to decide whether and when to have a family and their ability to control “our bodies and our futures.” 

She said almost all women will use contraceptives at some point in their lives, and an overwhelming majority of Americans support people having access to birth control. She said “extreme Republican legislators” across the country have been “chipping away” at the right to use and access contraception for years. 

She said Republicans have limited funding for birth control and spread disinformation about how contraceptives work. 

Manning said states had laws prohibiting access to birth control before 1965, the year Griswold was decided, and “extremists” are trying to take away women’s rights. 

She said the bill protects a “full range” of contraceptive methods, including birth control pills, IUDs and emergency contraceptives. She said it also prohibits any state law that restricts access to contraceptives and allows the attorney general and health care providers to bring a civil action against any state or government official that attempts to limit access. 

“Congress must immediately pass this bill to ensure people can access their birth control without government interference,” she said. “We are not willing to play defense on this critically important issue. We are playing offense.” 

The bill protecting marriage equality faces uncertain odds in the Senate, though it received bipartisan support in the House, as does the bill to protect contraception access if it passes. 

Sen. John Thune (R-S.D.), the Senate minority whip, said the marriage equality bill may receive the necessary 60 votes in the Senate required to overcome a filibuster. But a number of Senate Republicans have said they do not plan to support the bill. 

Senate Majority Leader Charles Schumer (D-N.Y.) said he is working to attain 60 votes in support of the bill. 

If all Democrats vote in favor of the marriage equality and contraception access bills, they would each need at least 10 Republican votes to overcome the filibuster.