UPDATE (Oct. 27, 10:00 a.m. ET):This piece has been updated to reflect Amy Coney Barrett's confirmation and swearing-in on Monday night.
The Senate's confirmation of Amy Coney Barrett on Monday has been all but guaranteed for weeks. That’s partly because Barrett herself has tried hard throughout the process not to answer questions and keep surprises to a minimum. She succeeded — so much so that her nonresponses became a running joke. But there was one thing she did seem sure about: the right to birth control was not “going anywhere.”
As we know with abortion, you don’t have to pass a law to make something all but illegal.
Sen. Chris Coons, D-Del., asked Barrett what she thought about Griswold v. Connecticut, a canonical 1965 case recognizing married couples’ right to use contraception. Barrett broke with tradition by refusing to affirm that Griswold was correctly decided, something conservative Justices John Roberts, Clarence Thomas and Samuel Alito had no problem doing in their confirmation hearings. But she seemed adamant that no one had to worry about birth control, in part because it was “unthinkable” that a state would pass a law prohibiting contraceptive use.
Barrett is probably right that states will not launch a broad attack on contraceptives, especially for married couples. But as we know with abortion, you don’t have to pass a law to make something all but illegal. Indeed, the threat to birth control — and in vitro fertilization — is increasingly plausible, particularly in an America without Roe v. Wade. President Donald Trump chose Barrett in large part because of his promise to reverse Roe. She already has demonstrated her willingness to defer to state legislatures passing all manner of abortion restrictions. Twenty-one states have signaled plans to ban all or most abortions should the court dismantle abortion rights, often without exceptions for rape or incest. States would be free to pass laws banning abortion.
And anti-abortion advocates have already blurred the line between abortion and birth control. Although some states, like Missouri, explicitly distinguish abortion and birth control, the line between the two in many states is anything but clear.
In recent years, abortion opponents have lobbied for conscience protections for pharmacists who don’t want to fill prescriptions for emergency contraception. They won restrictions on the morning-after pill by framing it as an abortion-inducing drug. In the late 2000s and beyond, conservative Christians not only raised religious objections to abortion but also insisted that many forms of birth control were abortion.
Most anti-abortion Americans believe that life begins at fertilization. Some anti-abortion groups, like the American Life League, argue that the birth control pill counts as an abortifacient because it could prevent implantation of a fertilized egg. Many more organizations — including movement leaders like Americans United for Life, the Susan B. Anthony List and the American Association of Pro-Life Obstetricians and Gynecologists — insist that both emergency contraception and IUDs prevent the implantation and therefore count as abortion. These conclusions are disputed; the American College of Obstetricians and Gynecologists disagrees both about how these drugs work and what should count as abortion in the first place. But what matters is how anti-abortion lawmakers define abortion.
In vitro fertilization may also come under fire. Some conservatives have religious objections to IVF, but many more argue against a process called selective reduction. The risk of stillbirth and miscarriage runs high in IVF, which on average costs between $10,000 and $20,000 per cycle (with only 20- to 35-percent odds of success per cycle). Because of the risk and expense, many IVF patients choose to implant multiple embryos each cycle. So multiple pregnancies, which make pregnancy more dangerous, are common in IVF. Patients then sometimes choose to terminate some pregnancies to maximize their odds of bringing one to term. By choosing to ban abortion, states may explicitly or implicitly ban selective reduction, too — and make IVF less effective and more dangerous for the patients who use it.
Barrett may open the door to bans on selective reduction or birth control by voting to overturn Roe. If the court’s conservative supermajority is skeptical about the privacy-based foundations of Roe, other autonomy-based rights, including contraception, could well be at risk. But even if the court doesn’t want to confront birth control directly, contraceptive rights are far from secure. We simply don’t know how far conservative lawmakers will go when they ban abortion. No one does, and that includes Barrett.
To be sure, going after birth control would be unpopular, even if state lawmakers use abortion laws to do it. Rep. Henry Hyde, R-Ill., a star in the anti-abortion movement, understood this well. When he proposed a federal ban on abortion, Hyde did his best to show that it wouldn’t affect birth control. Hyde understood that anything else would be political poison.
Past anti-abortion lawmakers have come to the same conclusion. In the 1980s, when President Ronald Reagan backed a statute recognizing fetal personhood from the moment of conception, Congress debated what the law would mean for birth control. Since 2008, similar arguments doomed recent efforts to pass state constitutional personhood amendments in states from Mississippi to Colorado.
But it’s unclear if this dynamic is still as strong. During the battle over religious objections to the Affordable Care Act, for example, abortion foes were front and center. Yes, the United States Conference of Catholic Bishops raised religious objections to paying for contraception. But other groups like the Family Research Council insist that some forms of birth control are abortion in disguise. The bottom line is that Americans don’t agree about what abortion actually is. That means contraceptives might get labeled abortion-inducing drugs.
Saying birth control is safe is disingenuous. Abortion foes have already worked to redefine some contraceptives as abortifacients. With Amy Coney Barrett on the court, there is no reason for them to stop now.