After their utter failure to protect abortion rights from the Supreme Court, Senate Democrats now feign preparation for the next battle: proposing a bill that entrenches an individual right to contraceptives. Republicans, naturally, torpedoed it. And now Democrats bid us rage. Don’t fall for it. Democrats drafted this performance for headlines, not to actually protect you.
To be sure, the bill does what it says. It “provide[s] a clear and comprehensive right to contraception” to be enforced against State interference by either Federal or private suit.[1] The drafters even remembered to include an express abrogation of State sovereign immunity (an arcane realm not relevant here) to allow such private action.[2] But this competent start leads nowhere: as the Supreme Court presently interprets it, Democrats have drafted a hopelessly unconstitutional law.
Recall high-school civics. Congress must peg every piece of legislation to some Constitutionally enumerated power. For civil rights legislation (ignore voting), Congress usually picks among three: the Spending Clause, the Commerce Clause, or the Fourteenth Amendment. None avail Democrats here.
The first—Spending—we can toss easily. While Congress can attach conditions to Federal funds, this bill does neither.
The Commerce Clause should provide a sufficient basis for the bill. Congress’s power over the channels and means of interstate commerce has historically included authority over public accommodations, places open to the public generally (restaurants, bars, hotels, or hospitals and medical offices). Additionally, Congress can regulate commercial activity that in aggregate substantially impacts the national economy. Purchasing contraceptives certainly constitutes a commercial transaction. And women’s modern access to the American workforce and public sphere rests substantially on contraceptive access. But in 2000’s Morrison v. United States, the Court ignored similar justifications for Congress’s attempt to curb violence against women in public. So, the Court will deem contraceptive use to be a non-commercial activity and strike the law.
The Fourteenth Amendment, which guarantees both due process and equal protection, should also provide easy support for the bill. Current case law (primarily Griswold v. Connecticut and Eisenstadt v. Baird) recognizes an individual’s right to contraceptives under the Due Process Clause. Women’s bodily autonomy and access to the public sphere certainly implicate the gender equality guaranteed by the Equal Protection Clause. And the Enforcement Clause names Congress as the Amendment’s primary guarantor. Indeed, the Reconstruction Congress legislated various rights of freedmen and citizens—including contract, property, jury service, testimony, and court access—and passed the Fourteenth Amendment specifically to authorize such action.
But this won’t work. For one, if (when) the Court overrules the individual right to contraceptives, the Due Process basis will fall away. For another, as the Court reiterated in Dobbs, gendered-medical issues like pregnancy and contraception don’t trigger Equal Protection concerns (check your reason at the door). Atop that, since the early 1990s, heralded by City of Bourne v. Flores, the Court has asserted its constitutional supremacy and has permitted Congress to legislate only in defense of Court-recognized rights. That is, now when the Court takes away, Congress can’t give back.
Simply put, a Court willing to quash contraceptive access—and thereby threaten our rights to interracial and same-sex marriage and intimacy—will not hesitate to brush aside remedial legislation passed by a long-chastened Congress. Senate Democrats know their bill is a charade.
In a better world, this bill should be solid. But to win back its Commerce and Enforcement powers, Congress will have to grow up and play hardball with the berobed. Serious moves toward impeachment, Court expansion, term limits, and at the very least budget hearings are long overdue. Sure, outside of impeachment, the Justices’ jobs and pay can’t be touched. But cushy offices and law clerks can be. Make them beg.
I supposed a savvy political operative wielding majorities in both Houses might have advanced a similar bill in February 2021, deliberately luring the Supreme Court to strike it down. The resulting uproar might have enabled meaningful reform. Yet here we are. If Democrats want to govern contraception, they’ll have to govern the Court first.
[1] Section 3: The purposes of this Act are—(1) to provide a clear and comprehensive right to contraception; (2) to permit individuals to seek and obtain contraceptives and engage in contraception, and to permit health care providers to facilitate that care; and (3) to protect an individual’s ability to make decisions about their body, medical care, family, and life’s course, and thereby protect the individual’s ability to participate equally in the economic and social life of the United States.
[2] Section 7(f): Abrogation Of State Immunity.—Neither a State…nor a government official…shall be immune under the Tenth Amendment to the Constitution of the United States, the Eleventh Amendment to the Constitution of the United States, or any other source of law, from an action in a Federal or State court of competent jurisdiction challenging that limitation or requirement.