A Lifeboat to Roe

Humor is often born of pain. So last month, when Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization was leaked, sounding the death knell for the constitutional right to abortion established in Roe v. Wade, it was no surprise when Stephen Colbert joked of the irony that this decision was written by “four white men and a woman who thinks The Handmaid’s Tale is a romcom.” If this wasn’t so deadly serious, it would be hilarious. 

Last week, millions of women in this country were stripped of a fundamental constitutional protection despite the fact that, according to the Pew Research Center, 61% of Americans believe in the right to abortion in any or most circumstances. 

Which means we’ve just entered a period in history where states’ interests fundamentally trump our interests as women. But it’s worse than that. Roe gave women more than the vital right to an abortion. It also gave us broader rights to autonomy, power, and the ability to shape our own futures. 

My generation often puts a lot of hope and pressure on the next generation to fix our seemingly intractable problems: global warming, our dysfunctional politics, our post-truth societal ills, and now… a woman’s right to decide when and if to have a child. That’s a lot to put on a generation that didn’t cause these problems. And the reality is, if we leave this fight to our children, it will be too late. 

We must all fight not just for what Roe specifically promised – a woman’s right to terminate a pregnancy – but also the general principles that undergirded it. And one concrete step we can take right now to protect a woman’s right to control her own destiny is to lobby Congress to make birth control pills available, at low or no cost, over-the-counter. I’m not suggesting that we stop fighting for all reproductive rights for women; but at the same time, we can also work toward something that is both preventative and bi-partisan.

Supreme Court doctrine is intrinsically iterative, so to understand Roe, we have to look at two cases that preceded it. 

In 1965, the Court decided Griswold v. Connecticut, which involved a doctor who gave birth control pills to a married couple in violation of a Connecticut statute that outlawed the use of contraception and the assistance of others in accessing it. The Court held the law unconstitutional on the grounds that the Constitution contains an implied right to privacy. Privacy, the Court held, encompasses a married couple’s right to use contraception. Then, in 1972, the Court in Eisenstadt v. Baird extended the right to access birth control to unmarried people,reasoning that “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Roe, decided three years later, famously held that the right to privacy established in Griswold and Eisenstadt also includes a woman’s right to terminate a pregnancy before the end of the first trimester. 

But Eisenstadt was not only predicated on the right to privacy – it was also based on the idea of equality: that married and single people deserve equal rights to self-determination. While the Court turned its back on its promises from Roe this past week, it has been failing to deliver on its promise of equality from Eisenstadt for decades by permitting the FDA to force women to jump through hoops to acquire birth control pills. 

Access to birth control is a gender equity issue. Women should not have to spend our finite time, resources, and energy getting (and refilling) a prescription for a safe drug that protects our freedom to get an education, pursue our desired careers, and shape our own futures. 

Many other countries have already reached this obvious conclusion: a prescription is not required for access to birth control pills in more than 100 countries. Laypeople and experts alike agree on this issue. Public opinion polls indicate that 74% of women of reproductive age support making oral contraceptives available over-the-counter. The American Academy of Family Physicians (AAFP) has endorsed access to over-the-counter oral contraceptives, as has the American College of Obstetrics and Gynecology (ACOG). Both of these organizations cite barriers to access, like the requirement for a prescription, as a central reason for inconsistent or non-use of contraception. And while some states have taken cautious steps towards increasing access to birth control by empowering pharmacists to write prescriptions, or allowing consumers to receive prescriptions online, total over-the-counter access would provide a much more comprehensive solution. 

This is not a safety issue. Oral contraceptives have been thoroughly vetted and available in the U.S. for more than 60 years. Birth control pills are less risky than ubiquitous over-the-counter drugs like aspirin and ibuprofen (which can cause stomach bleeding) or acetaminophen (which can cause liver damage).

Keeping birth control pills under lock and key is about control over women’s bodies, plain and simple, like a modern incarnation of the chastity belt. Many doctors require women to schedule annual exams to receive or refill birth control prescriptions, or even to receive a diaphragm, which makes no more sense than requiring men to undergo an annual appendage measuring in order to buy condoms. That suggestion seems absurd to us, though, because we view men as stewards of their own bodies who do not require a doctor’s permission to be sexually active. 

Like restrictions on abortion access, barriers to birth control disproportionately affect marginalized women. Even for the well-resourced, the prescription requirement to access birth control is onerous. But the situation is more dire for the 19 million women of reproductive age in this country who live in contraceptive deserts, meaning that they lack reasonable access to a full range of contraceptive methods. 

Consider the effect of the prescription requirement on a young woman who doesn’t have access to transportation or information on how to navigate the healthcare system. Or on that of a single mother who takes time off work and finds childcare in order to go to a doctor’s appointment, or that of an undocumented woman who does not speak English and fears for her safety if she accesses government-provided resources, or on that of an uninsured woman who cannot afford the out-of-pocket cost of prescription pills. 

Making birth control pills accessible over-the-counter will remove an important barrier for all women in the age-old fight for control over our own bodies and therefore destinies. It would also spare us some abortion battles, in many cases, by creating as few unintentional pregnancies as possible in the first place. Two possible roads can lead to over-the-counter birth control pills. Either the FDA can grant over-the-counter approval for the pills, or Congress can remove the FDA’s power to require a prescription for them in the first place. 

The latter approach is preferable for two reasons: first, drug companies have been lobbying the FDA to grant over-the-counter status to birth control pills for years to no avail. Second, the same Supreme Court that is overturning Roe has been extremely hostile to agency determinations and will have no qualms about slapping down an FDA decision it does not like.

That leaves Congress to step into the void the Court has created and act to protect the vital rights to privacy and autonomy that Griswold, Eisenstadt, and Roe promised us long ago. Liberal representatives should see access to over-the-counter birth control as a natural extension of their views on choice, and Conservative ones should see it as the antidote to what seems to them to be the intractable problem of abortion. This can likely be achieved with swift bipartisan support if we all let our representatives know that this is a priority!

Preventing unwanted pregnancy is a surefire way to limit abortion. Let’s get these pills out from behind the counter and into the hands of women who deserve to control their futures.