Birth Control is under Attack

Has the option to choose birth control always been there for you and your family?

People of my age (older adults) remember the days before contraceptive medications, such as the pill, were options for women and the choices were vaginal diaphragms, which had to be fitted, then strategically inserted, condoms for men, and the Catholic Church’s advised “rhythm method”. The rhythm method used a calendar and daily temperature measurements to determine the most fertile times in a woman’s cycle. Those who wanted to get pregnant made use of this information; those who did not, abstained during these times. Few of these methods were consistent or helpful in the long run.

During the 1950s, scientists were encouraged to find better methods and eventually developed what we now know as the birth control pill. We can thank the knowledge passed down from the Aztecs and still used by some Mexican women today for the development of the first prescription birth control pill. According to an article from Planned Parenthood, women in Mexico used a type of yam, called the Barbaco Root, to prevent pregnancy. Investigation of this plant determined that it produced progestin which, when combined with estrogen, prevented pregnancy. Progestin is a hormone synthetically produced, while Progesterone is a hormone that the body produces and is used to keep a pregnancy viable. Estrogen allows the body to regulate the menstrual cycle and affects the reproductive tract and other important organs. A smaller amount is also present in males.

After many years of research, clinical trials, and field studies, the FDA approved the first prescription Birth Control pill in 1960. That medication, called Enovid, was not without controversy as many trials were conducted in Puerto Rico, where the women were frequently illiterate and might not have understood the medication instructions. This first pill had some side effects as it contained higher levels of hormones and some users reported problems with blood clots, fluid retention, and headaches, among others. (Pills used today contain only a fraction of the hormonal doses used in the early pills as scientists learned their goals could be accomplished with less medication.)

The ability to take the pill was a game changer for many women, although this, too, caused social disruption. Critics warned that this would lead to immorality if women were free to decide about pregnancies. But, for women, it meant that they could make career and educational choices, they could space the births of their children, and not be subjected to yearly births. Of course, there were those back then who fought the legality of birth control, as many states previously made promoting or prescribing it illegal. In cases decided by the Supreme Court (Griswold vs. Connecticut,1965) the use of contraception was permitted for married couples, and in 1972 (Eisenstadt vs. Baird) unmarried women could purchase the medications. (Doesn’t this totally sound quaint some 50 + years later?)

The singer Loretta Lynn even sang a tune in 1975 called ‘The Pill’ about the freedom the pill gave to women. When NPR interviewed women who lived during that era, sixty years after the pill was introduced, they spoke of the changes this made in their lives.

“When the pill was approved in 1960, women had relatively few contraceptive options, and the pill offered more reliability and convenience than methods like condoms or diaphragms, said Dr. Eve Espey, chair of the Department of Ob/Gyn and Family Planning at the University of New Mexico.

“There was a huge, pent-up desire for a truly effective form of contraception, which had been lacking up to that point,” Espey said.

By 1965, she said, 40% of young married women were on the pill.”

According to data from the CDC, contraceptive use is across all communities.

Data from the 2015–2017 National Survey of Family Growth

“In 2015–2017, 64.9% of the 72.2 million women aged 15–49 in the United States were currently using contraception. The most common contraceptive methods currently used were female sterilization (18.6%), oral contraceptive pill (12.6%), long-acting reversible contraceptives (LARCs) (10.3%), and male condom (8.7%).

Use of LARCs was higher among women aged 20–29 (13.1%) compared with women aged 15–19 (8.2%) and 40–49 (6.7%); use was also higher among women aged 30–39 (11.7%) compared with those aged 40–49.

Current condom use did not differ among non-Hispanic white, non-Hispanic black, and Hispanic women (about 7%–10%).

Female sterilization declined and use of the pill increased with higher education. Use of LARCs did not differ across education (about 10%–12%).

Nearly all women use contraception in their lifetimes (1), although at any given time, they may not be using contraception for reasons such as seeking pregnancy, being pregnant, or not being sexually active. Using data from the 2015–2017 National Survey of Family Growth (NSFG), this report provides a snapshot of current contraceptive status, in the month of interview, among women aged 15–49 in the United States. In addition to describing use of any method by age, Hispanic origin and race, and education, patterns of use are described for the four most commonly used contraceptive methods: female sterilization; oral contraceptive pill; long-acting reversible contraceptives (LARCs), which include contraceptive implants and intrauterine devices; and male condom.

According to the Planned Parenthood article mentioned above:

“As more and more women are able to plan their families with modern methods of contraception — the IUD and methods such as the implant and the shot, which derive from the research that developed the pill — the number of pregnancies per woman has decreased worldwide. This decrease has been identified as one of the key factors associated with recently reported and significant reduction in the rate of maternal mortality around the globe (Hogan et al., 2010).

As former US Secretary of State Hillary Rodham Clinton pointed out during the G8 Conference in Gatineau, Quebec, “You cannot have maternal health without reproductive health, and reproductive health includes contraception and family planning and access to legal, safe abortions”

So, as we have already seen after Dobbs, abortion access remains under attack across the country. A determined effort is underway to limit the usage of birth control pills, as well as other contraceptive methods like implants and abortion pills. Over 60% of all abortions currently happening in the US use the medication method; some states are trying to add requirements for additional in-person doctor visits and deny mail-order uses of these drugs.

Another tactic uses the “conscientious objector or conscience” method, claiming that if birth control is against one’s beliefs, providers, and employers can legally avoid providing such services. The Supreme Court affirmed this argument in the Hobby Lobby case and for inclusion in the ACA.

In an article for MSNBC, professor Mary Ziegler claims the war on birth control has already started as she shows here:

“Conscience arguments are the most familiar among conscientious objectors to war, but in the 1970s, antiabortion lawyers repurposed them to carve out exemptions for medical professionals who did not want to participate in abortions. At the beginning, these conscience rules enjoyed bipartisan support: a right to conscience resonated with both progressives committed to pluralism and conservatives uncomfortable with legal abortion. But soon, abortion opponents found new uses for these arguments for conscience: Antiabortion lawyers and politicians relied on such arguments to support the Hyde Amendment, a ban on Medicaid reimbursement for abortion. Reimbursing Medicaid patients with taxpayers’ money, they argued, violated the conscience of those with objections to abortion. Their solution: ban all reimbursement for all low-income patients—and suggest that the ban actually helped Medicaid patients by forcing them into a better choice.

‘Paragraph omitted’………Conscience arguments have also transformed legal fights about birth control. ADF played a central role in fighting the contraceptive mandate of the Affordable Care Act, which required employers to cover all FDA-approved contraceptives without co-pay. In 2014’s Burwell v. Hobby Lobby, ADF defended employers who believed that common contraceptives, including IUDs and the morning-after pill, were to be abortifacients. The group has framed this cause as a fight for pluralism: just as the law should not force anyone not to use contraception, the law should not force employers to subsidize a pill they believe to kill a rights-holding fetal person. Sears’ comments show that conscience claims can be the cornerstone of a new conservative incrementalism that erodes access to birth control and lays the groundwork for a future ban. In Hobby Lobby, ADF already created the foundation for this new strategy: suggesting that religious employers had a sound reason for objecting to birth control drugs that might be abortifacients. Other powerful antiabortion groups, like Students for Life, take the same position, suggesting that common forms of birth control actually prevent the implantation of a fertilized egg and thus qualify as abortion drugs.

The Dobbs decision overturning Roe v. Wade and the ADF’s work against transgender rights has provided the group with an equally important resource for anti-birth control incrementalism: history and tradition as a limit on constitutional rights. The Dobbs ruling rejected the idea of a right to choose abortion by stressing that it is not deeply rooted in our nation’s history and tradition, understood to mean the years around 1868 when the Fourteenth Amendment was ratified.

The “history and tradition” argument can apply even to drugs that even abortion opponents may concede are contraceptives.

Dobbs has become central to the defense of laws banning gender-affirming care for minors, many of which ADF had a hand in drafting. Parents who have pushed back against these laws have argued that the Constitution protects parents’ rights to make decisions in their children’s own best interest. Courts sympathetic to ADF responded that after Dobbs, the Constitution recognizes only rights that are deeply rooted in history and tradition—and that because gender-affirming care is new and experimental, there can be no deeply rooted right for parents to seek out that care for their children.

It would not be hard for ADF to make the same argument about birth control in the future. Some abortion opponents will argue that Dobbs already addressed the issue when it comes to many drugs—including the birth control pill—because those drugs count as abortion. But the “history and tradition” argument can apply even to drugs that even abortion opponents may concede are contraceptives. It was in the late nineteenth century, after all, that many states began criminalizing contraception, and that the federal government passed the Comstock Act, which made it a federal crime to mail contraceptives. This kind of evidence convinced the Supreme Court’s conservative supermajority that there was no right to abortion. ADF knows that at some later point, similar evidence might convince the Court that there is no right to contraception either.

In the short term, access to birth control is likely to remain unchanged. In the longer term, however, ADF has made clear that it is far from safe. And anyone looking to predict how the attack on it will unfold knows just where to look: fights about sexual orientation, gender identity, and the right to conscience.”

Mary Ziegler Professor at the UC Davis School of Law Oct. 10, 2023

The Washington Post published two articles recently that exposed the campaign by some on the right to discourage the use of birth control by spreading false rumors about complications and side effects. And, as noted earlier, the initial pills used higher doses of hormones and patients had a higher rate of side effects. However, now, information is provided to patients that during the first couple of months, their bodies may experience changes as they get used to the new medication. This is not unique to contraceptive medications.

“The backlash to birth control comes at a time of rampant misinformation about basic health tenets amid poor digital literacy and a wider political debate over reproductive rights, in which far-right conservatives argue that broad acceptance of birth control has altered traditional gender roles and weakened the family.”

The second article in the Post provides explanations to counter the claims made in the previous article.

As I asked last week in my blog about the ERA, what is it about women’s autonomy and empowerment that so frightens the right?

Some Blue states are stockpiling Mifepristone; I hope they will not have to do that for contraceptive options. The Economist reports that an average of 400 women per day (or 160,000 last year) are crossing state boundaries to access abortion services. The Supreme Court will hear arguments against the FDA approval of Mifepristone this week, with Senator Josh Hawley’s wife Erin arguing against approval. What a power couple they are!

The Economist also presents a case to reject this petition, stating that the drug is safer than Tylenol and was not rushed to a decision. Mifepristone is used in 90% of abortions conducted in England, Wales, and many Scandinavian countries today. The World Health Organization (WHO) approved it. The arguments against it are described as spurious. (But. then. many on the right, reject the WHO!)

Till next week-Peace!