Former President Obama’s chief of staff Rahm Emanuel once quipped, “You never want a serious crisis to go to waste.” Staunch advocates of abortion rights today have taken that adage one step further—never let a manufactured crisis go to waste. Ever since the Supreme Court in Dobbs v. Jackson Women’s Health returned power to regulate abortion to elected lawmakers, the left has stoked unfounded fears that everything from contraceptives to in vitro fertilization (IVF) to basic emergency care is under threat.
And now, they are seeking to parlay those fears into a federal takeover of the state’s power to regulate the practice of medicine in service of their agenda. Last week, Senate Democrats forced a vote on the Right to Contraception Act, which would create federal statutory rights to obtain or provide contraceptives and give the Department of Justice the power to enforce it against the states. The rationale for the law, however, is entirely unclear. In a pair of cases decided in 1965 (Griswold v. Connecticut) and 1972 (Eisenstadt v. Baird), the Supreme Court afforded access to contraceptives constitutional protection. Those decisions are not under challenge. Moreover, contraception is widely available and is used by approximately 65 percent of women aged 15-49. Despite breathless claims to the contrary, including by President Biden, the legality and availability of contraception are not in jeopardy.
However, the Right to Contraception Act would jeopardize states’ ability to craft sensible laws protecting the consciences of employers, health care providers and insurers who object on religious grounds to certain forms of contraception—recall the federal government once tried to force nuns to provide contraceptives.
Moreover, it would draw into question laws placing commonsense regulations around drugs that many consider to be abortion-causing, including laws requiring parental notification and consent to the use of such drugs by their minor children. Similarly, the so-called Right to IVF Act, which Senate Democrats forced to a vote this week, would override state laws that the federal government deems constitute a “prohibition, limitation, interference, or impediment” to assisted reproductive technology, including IVF. Again, there is no rationale for this level of federal interference with a field traditionally occupied by state law. No state today bans IVF. Even Alabama—whose Supreme Court found embryos are persons for purposes of its wrongful death statute—has passed a law protecting IVF.
Far from solving problems, however, the bill would only create them. It would prevent states from taking measures to sensibly regulate IVF, as nations like Germany have done by limiting practitioners from fertilizing more than three eggs or transferring more than three embryos within a treatment cycle and prohibiting experimentation on embryos. It also would prevent states from regulating IVF so that embryos are not indefinitely frozen or routinely destroyed and could override even basic state-level conscience protections for medical providers and insurers. Even more, it would punish states for recognizing the humanity of embryos created through IVF.
The heavy-handed approach taken by the IVF and contraception bills is part and parcel of an emerging playbook to leverage federal power to impose a nationwide health care regime that disregards the dignity of life and that ensures the ethical practice of medicine. True, neither contraception nor assisted reproductive technology are typically viewed as “life issues.” But President Biden and Senate Majority Leader Chuck Schumer (D-N.Y.) have expressly connected the contraception and IVF bills to Roe v. Wade. And for good reason: Both bills leverage federal power to create federal rights that exclude basic, commonsense protections for unborn life.
President Biden’s support in particular should come as no surprise since his administration has repeatedly used federal power to drive policies that promote an agenda hostile to life.
Earlier this year, the Supreme Court considered a challenge to the Biden administration’s attempt to reinterpret as a nationwide abortion mandate a federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires emergency room physicians to stabilize patients—including women and unborn children—experiencing emergency medical conditions.
When asked whether the “federal government [could] essentially regulate the practice of medicine of the states” through Congress’ power to attach conditions to federal spending, Solicitor General Elizabeth Prelogar said it could through Congress’s “broad authority under the Spending Clause.”
The contraceptive and IVF bills and the EMTALA abortion mandate each make use of federal power to solve a manufactured “crisis” in a way that needlessly disregards unborn human life. We cannot shortchange the profound moral and legal implications of these measures, nor should we embrace federal policies that would prevent the states from addressing those implications in a thoughtful and tailored manner that respects life and conscience rights. Unfortunately, these measures appear aimed less at solving real problems than at political grandstanding. If adopted, however, they would bulldoze state laws that stand in the way of reconstructing a nationwide pro-abortion rights regime in place of Roe.
Ryan Bangert is senior vice president of strategic initiatives and special counsel to the president for Alliance Defending Freedom (@ADFLegal).