The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the wake of Dobbs, the Democratic-controlled House is passing a flurry of bills to "codify" constitutional rights that are not really in jeopardy. Yesterday, I wrote about the Respect For Marriage Act, which would require a state to recognize same-sex marriages performed in another state. This bill passed with more than forty votes from Republicans. Today, the House passed The Right to Contraception Act. Here, only eight Republicans crossed over. Let's walk through the bill.
First, the bill creates a statutory right to access contraception and contraceptive. These terms are defined quote broadly:
(1) CONTRACEPTION.—The term "contraception" means an action taken to prevent pregnancy, including the use of contraceptives or fertility-awareness based methods, and sterilization procedures.
(2) CONTRACEPTIVE.—The term "contraceptive" means any device or medication used to prevent pregnancy, whether specifically used to prevent pregnancy or for other health needs, including all contraceptive products approved, cleared, or granted de novo classification by the Food and Drug Administration, such as oral contraceptives, long-acting reversible contraceptives, emergency contraceptives, internal and external condoms, injectables, vaginal barrier methods, transdermal patches, and vaginal rings, or other contraceptives.
During the Hobby Lobby litigation, many religious rights groups viewed certain forms of FDA-approved contraceptives, like Plan B and Ella, as abortifacients that can operate after the point of fertilization. As I read the bill, all of these forms of emergency contraception would be covered. Moreover, I wonder if the FDA could later redefine abortion pills as a form of contraceptive–after all they "prevent pregnancy" from continuing.
Second, the bill explains that both the health care provider and the patient have this statutory right:
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.
And the bill explains that federal and state governments cannot interfere with a health care provider's ability to provide contraception.
Nothing in this Act shall be construed to authorize any government to interfere with a health care provider's ability to provide contraceptives or information related to contraception or a patient's ability to obtain contraceptives or to engage in contraception.
How far does this bill go? If a state requires a prescription to obtain certain forms of contraception, would those laws be preempted? Could a state still grant religious hospitals the ability to opt-out of providing emergency contraception or sterilization? Or would that exemption be preempted? (Litigation is ongoing about sterilization procedures with respect to trans patients.)
Third, the bill also extends to providing contraception-related information.
(b) LIMITATIONS OR REQUIREMENTS.—The statutory rights specified in subsection (a) shall not be limited or otherwise infringed through any limitation or requirement that— (1) expressly, effectively, implicitly, or as implemented singles out the provision of contraceptives, contraception, or contraception-related information; health care providers who provide contraceptives, contraception, or contraception-related information; or facilities in which contraceptives, contraception, or contraception-related information are provided; and (2) impedes access to contraceptives, contraception, or contraception-related information.
I'm not entirely sure what this provision is getting at, but one thought: school sex-ed programs may be affected to the extent that some programs limit information about contraception at certain ages. Do kindergartners now have a statutory right to learn about the morning-after pill? There may also be some compelled speech issues here.
Fourth, the bill suggests that any laws burdening contraception would be reviewed with something like strict scrutiny. This language borrows from RFRA's "least-restrictive alternative" framework.
To defend against a claim that a limitation or requirement violates a health care provider's or patient's statutory rights under subsection (b), a party must establish, by clear and convincing evidence, that— (1) the limitation or requirement significantly advances access to contraceptives, contraception, and information related to contraception; and (2) access to contraceptives, contraception, and information related to contraception or the health of patients cannot be advanced by a less restrictive alternative measure or action.
Speaking of RFRA, fifth, this bill supersedes RFRA, and preempts all state laws!
Except as stated under subsection (b), this Act supersedes and applies to the law of the Federal Government and each State government, and the implementation of such law, whether statutory, common law, or otherwise, and whether adopted before or after the date of enactment of this Act, and neither the Federal Government nor any State government shall administer, implement, or enforce any law, rule, regulation, standard, or other provision having the force and effect of law that conflicts with any provision of this Act, notwithstanding any other provision of Federal law, including the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).
I wonder if this bill would abrogate Hobby Lobby and related cases? I don't think a religious exemption to the ACA's contraceptive mandate based on RFRA could even work under this regime.
Sixth, this bill expressly waives sovereign immunity to permit suits against the states:
Neither a State that enforces or maintains, nor a government official (including a person described in section 6(c)) who is permitted to implement or enforce any limitation or requirement that violates section 4 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.
I'll come back to the sovereign immunity abrogation argument in a bit.
Seventh, and finally, the bill identifies three potential jurisdictional hooks:
(16) Congress has the authority to enact this Act to protect access to contraception pursuant to—
(A) its powers under the commerce clause of section 8 of article I of the Constitution of the United States;
(B) its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment; and
(C) its powers under the necessary and proper clause of section 8 of article I of the Constitution of the United States.
The bill includes two perfunctory findings about interstate commerce:
(14) People engage in interstate commerce to access contraception services.
(15) To provide contraception services, health care providers employ and obtain commercial services from doctors, nurses, and other personnel who engage in interstate commerce and travel across State lines.
Are these findings enough to pass the Lopez/Morrison line? They are light, and there is no clear demonstration of how dispensing contraception in a single state fits into these sparse findings. Nor is there any discussion of how this bill fits into some broader regulatory scheme.
Next, let's turn to sovereign immunity. Per Seminole Tribe, Congress cannot waive sovereign immunity under its Commerce Clause and Necessary and Proper Clause powers. But Congress could use its Section 5 enforcement powers to abrogate sovereign immunity. Is this bill, under Boerne v. Flores, a "congruent and proportional" means to remedy a violation of Section 1, as defined by the Supreme Court? The findings of the bill hint at cases like Griswold, Eisenstadt, and others. But the actual operation of the bill seems to go far beyond what those cases actually held. The fact that there may be some unenumerated right to access contraception, emanating from a penumbra, does not mean there is an unfettered right to access contraception without regard to prescriptions and other reasonable state regulations. I think this bill exceeds what the Supreme Court has identified with regard to a right of contraception. Moreover, this bill would eliminate a state's longstanding ability to regulate, consistent with Griswold, access to certain forms of emergency contraception. This bill would likely flunk the Boerne test.
And what happens if Griswold is overruled (which will never happen)? In that situation, the bill would clearly flunk the Boerne test, as a ban on contraception would not violate Section 1. I don't see how there can be any meaningful waiver of sovereign immunity here.