July 25 marked the 54th anniversary of St. Paul VI’s encyclical “Humanae Vitae,” reaffirming the church’s teaching on contraception and openness to the gift of new life.
Four days earlier, the House of Representatives voted to make it illegal for Catholic institutions to follow that teaching.
The proposal is H.R. 8373, the Right to Contraception Act. The pretext for it is that when the Supreme Court issued its Dobbs decision reversing Roe v. Wade, Justice Clarence Thomas suggested in a concurring opinion that past Supreme Court decisions on contraception might be reconsidered.
Sponsors say the act is needed to create a federal “right” to contraception when the constitutional right falls.
But Thomas was alone in his view. The majority opinion declares that Dobbs does not undermine decisions on marriage, sex and contraception “in any way,” saying repeatedly that abortion is different because it takes a life.
Dissenting justices wanted to uphold Roe itself, and of course strongly support a right to contraception. That makes eight votes against one.
So why this legislation? We need to look at what it says and tries to do.
It declares: “The right to contraception is a fundamental right, central to a person’s privacy, health, wellbeing, dignity, liberty, equality, and ability to participate in the social and economic life of the Nation.”
I have known quite a few people who enjoy those other rights without relying on this one. Contraception is declared to be “safe, essential health care,” which will be news to women whose contraceptive use led to blood clots or breast cancer.
Based on these assumptions, “a person has a statutory right under this Act to obtain contraceptives and to engage in contraception, and a health care provider has a corresponding right to provide contraceptives, contraception and information related to contraception.”
But past Supreme Court decisions are about freedom from active governmental interference in one’s private use of contraceptives. This bill creates something else: a positive entitlement to obtain them. The health care provider’s “right” is an obligation, and lawsuits are authorized against state policies that may limit ready access.
Any ambiguity on this is resolved by the act’s condemnation of laws allowing health care providers to opt out of providing contraceptives for moral or religious reasons.
And the act nullifies use of the Religious Freedom Restoration Act to defend against its national mandate. That law saved the Little Sisters of the Poor and other Catholic entities from being forced to provide contraceptive coverage under the Obama health care legislation.
As noted in that litigation, some drugs the Food and Drug Administration calls “contraceptives” can prevent implantation, ending the life of a newly conceived human being. Catholic teaching rejects such activity as abortifacient.
It gets worse. The act defines a “contraceptive” as “any drug, device or biological product intended for use in the prevention of pregnancy, whether specifically intended to prevent pregnancy or for other health needs, that is legally marketed under the Federal Food, Drug, and Cosmetic Act.”
The president and most House members see abortion as one of those “other” needs. They favor legislation to create a nationwide abortion mandate — including abortions by mifepristone (RU-486), which the FDA allows for abortion through the 10th week of gestation.
That legislation failed in the Senate. But the medical literature says RU-486 also is an effective “emergency contraceptive.” So this act could be used to maximize its distribution, even in states with laws against abortion.
This Congress has already debated measures attacking Americans’ right to choose not to be involved in abortion. This bill is more cleverly written but serves the same goal, driven by the movement once known as “pro-choice.”
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.
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