Supreme Court’s Dobbs Decision Triggers State Actions to Protect Contraceptive Rights

In the wake of the Supreme Court’s Dobbs ruling that overturned Roe v. Wade, states across the country are moving to codify protections for contraceptive access amid growing concerns that these rights could be at risk. While the Court’s majority opinion stated that the decision does not “cast doubt on precedents that do not concern abortion,” Justice Thomas’s concurring opinion specifically called for reconsidering landmark cases including Griswold v. Connecticut, which established the right of married people to obtain contraceptives in 1965.

This judicial uncertainty has spurred legislative action at both state and federal levels, with lawmakers introducing measures to protect contraceptive access. The issue gained further prominence when former President Donald Trump recently suggested contraception rights should be left to states—a statement he later walked back with assurances he would not limit contraception.

With several state ballot initiatives headed to voters in November 2024 and Senate Majority Leader Chuck Schumer promising a Senate vote on national contraceptive protections, reproductive rights are emerging as a significant election issue this fall.

Current Constitutional Protections for Contraception

The right to contraception currently rests on two Supreme Court decisions: Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). Prior to these rulings, many states prohibited contraceptives entirely, barring clinicians from even discussing birth control with patients. Griswold established constitutional privacy protections for married couples seeking contraception, while Eisenstadt later extended these protections to unmarried individuals.

Despite these constitutional safeguards, widespread misconceptions about certain contraceptive methods have created gray areas in state policies. Polling indicates that 73% of Americans incorrectly believe emergency contraceptive pills can terminate early pregnancies, and many wrongly think that intrauterine devices (IUDs) primarily work by preventing implantation of fertilized eggs.

Medical experts and leading health organizations define pregnancy as beginning at implantation of a fertilized egg, not at fertilization. However, emergency contraceptives like Plan B and Ella—as well as IUDs—work by preventing ovulation or impeding sperm from reaching eggs. They do not terminate existing pregnancies or prevent implantation of fertilized eggs.

State Policies Creating Confusion

Several states have attempted to restrict access to emergency contraception through various policies. Texas received federal permission to exclude emergency contraceptives from its Medicaid-funded family planning program through December 2024. Missouri’s senate previously considered barring coverage of emergency contraceptives in its Medicaid program, though the measure ultimately failed. Iowa stopped reimbursing Plan B for sexual assault survivors through its Crime Victim Compensation Program in 2023.

More troubling are the definitions employed in some state abortion bans. Tennessee’s total abortion ban defines pregnancy as “the reproductive condition of having a living unborn child within [the pregnant person’s] body throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.” Similarly, Missouri defines an “unborn child” as existing “from the moment of conception” and defines conception as fertilization.

These definitions can create dangerous ambiguity. When Missouri’s abortion ban took effect, a major hospital system temporarily stopped providing Plan B out of fear of legal repercussions, resuming only after clarification from state officials. While most state abortion bans limit their definitions to “clinically diagnosable pregnancies,” the confusion demonstrates how misunderstandings about contraceptive mechanisms can threaten access.

State Protections Emerge

In response to these concerns, fourteen states and the District of Columbia have established legal or constitutional protections for contraceptive access. California, Michigan, Vermont, and Ohio have passed constitutional amendments through ballot measures that recognize a broad right to reproductive autonomy, including contraception. Six states and D.C. enacted these protections after the Dobbs decision in June 2022.

The remaining states with contraceptive protections—Colorado, Illinois, Massachusetts, New Jersey, Oregon, Rhode Island, Washington, and Florida—established them before Dobbs, with most acting between 2019 and 2022. Oregon, Washington, and Florida were early adopters, with laws dating to 2007, 1991, and 1972 respectively.

Constitutional amendments provide stronger protection than statutes, as they are harder to repeal or modify with changing political winds. Most laws protecting contraception also safeguard other reproductive health services, including miscarriage management, maternity care, and assisted reproduction.

Looking Ahead: Ballot Measures and Federal Action

The momentum continues in 2024, with legislators in Hawaii, Maryland, Nevada, and Washington proposing constitutional amendments to protect contraception. Maryland’s measure will appear on the November 2024 ballot, while Nevada’s could reach voters by 2026. Bills protecting contraceptive access have been introduced in Arizona, Iowa, and Virginia, though Virginia Governor Glenn Youngkin recently vetoed such legislation after it passed both chambers.

At the federal level, the Right to Contraception Act was reintroduced in June 2023 after failing to advance in the previous Congress. While it lacks sufficient support to pass the current divided Congress, Schumer has announced plans for a Senate vote on contraceptive rights, ensuring the issue remains prominent in election-year debates.

President Biden has issued executive orders directing federal agencies to ensure broad access to contraceptive services and supplies without barriers related to cost, coverage, or availability. The Department of Health and Human Services has issued guidance reminding pharmacies of their obligations under federal civil rights law when dispensing contraceptives.

Recent KFF polling shows that 21% of adults consider the right to contraception to be threatened, with higher concerns among Democrats (over one-third) and Democratic women (one in four). This concern may grow as contraceptive access receives more attention during the upcoming election cycle, potentially becoming a decisive issue for many voters in November.