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Senate rejects move to codify right to contraception

All but two Republicans opposed the legislation, calling it a ‘show vote’

Americans for Contraception unveil a 20-foot inflatable IUD outside Union Station in Washington on Wednesday.
Americans for Contraception unveil a 20-foot inflatable IUD outside Union Station in Washington on Wednesday. (Bill Clark/CQ Roll Call)

The Senate on Wednesday used a procedural vote to quash efforts to codify protections for accessing contraception, part of a flurry of legislative activity in advance of the two-year anniversary of the Supreme Court’s decision to overturn Roe v. Wade.

Two Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, joined Democrats in voting to move forward on a bill that would guarantee the ability for health care professionals to provide contraception and related information. The bill would also guarantee the rights of individuals to access contraception. 

The Senate needed 60 votes to advance the legislation; the final vote was 51-39. Majority Leader Charles E. Schumer, D-N.Y., voted no in order to be able to bring up the bill under Senate rules at a later date.

Democrats say they are worried about access to contraception because the 1973 Roe decision was based, in part, on a 1965 contraception case known as Griswold v. Connecticut, which protected the rights of married couples to use contraception.

Friday will mark the 59-year anniversary of that decision.

President Joe Biden issued a statement criticizing the lack of Senate action soon after the vote.

“Senate Republicans just refused to protect a woman’s right to birth control,” the statement said. “This is the second time since the Supreme Court’s extreme decision to overturn Roe v. Wade that Congressional Republicans have refused to safeguard this fundamental right for women in every state. It’s unacceptable.”

Popular support

Forty-five percent of U.S. adults consider the right to contraception a “secure right likely to remain in place,” according to a KFF Health Tracking poll released in March.

This week, Democrats have amped up calls to protect contraception access, citing Justice Clarence Thomas’ concurrence in the Dobbs decision in which he calls for reconsidering precedent under Griswold.

They have also expressed concern about Virginia Gov. Glenn Youngkin’s veto of a contraception bill last month.

“Contraception is under assault in our country, even though the Griswold decision is now 59 years old,” said Edward J. Markey, D-Mass., the Senate bill’s lead sponsor, speaking ahead of the vote during a Wednesday news conference. 

Republicans have criticized the contraception bill, saying one of its provisions would infringe on religious freedoms granted under a 1993 law referred to as the Religious Freedom Restoration Act.

Instead, the GOP called for advancing an alternative contraception bill from Sen. Joni Ernst, R-Iowa. Her bill would grant priority review for some over-the-counter oral contraceptives and commission a Government Accountability Office study documenting federal spending on contraception over the past 15 years.

Sen. Tina Smith, D-Minn., objected to Ernst’s unanimous consent request to pass her bill.

Republicans lambasted the debate on Markey’s bill as a “show vote.”

“If the Democrat leader had any real interest in legislating on these issues, he would be working with Republicans to bring up legislation that actually has a chance of receiving support from both Democrats and Republicans,” said Senate Minority Whip John Thune, R-S.D. “Because these votes have nothing to do with legislating and everything to do with boosting Democrats’ electoral chances — he hopes — this fall.”  

Schumer, who also plans to bring up an in vitro fertilization legislative package, defended the upcoming votes.

“This is not a show vote. This is a ‘show us who you are’ vote,” he said. 

The House previously passed a version of similar legislation in July 2022, 228-195, largely on party lines. But it has not acted on that or any other contraception legislation since.

Rep. Kathy Manning, D-N.C., the lead sponsor of the House version of the contraception bill, filed a discharge petition Tuesday to force a floor vote. As of Wednesday, it had 193 signatures. It needs 218.

Reproductive rights, including contraception, continues to be a salient issue for the Biden campaign, which said it is holding events this week in Atlanta; Grand Rapids, Mich.; Madison, Wis.; Reno, Nev.; and Tucson, Ariz., as part of this broader effort.

“Our campaign is using today’s vote and Friday’s anniversary to mobilize voters and volunteers around the threat Donald Trump poses to contraception,” said Biden-Harris 2024 campaign manager Julie Chavez Rodriguez during a press call Wednesday. “We’re going to make sure voters know that contraception is on the ballot this November.”

Protecting contraception is a popular issue across political parties, according to a survey from Republican strategist and pollster Kellyanne Conway’s firm, KAConsulting.

Forty-six percent of Republicans and 49 percent of conservative women said they would consider voting for a candidate from a different political party if the conservative candidate supported restrictions to accessing contraception, according to polling released in December. And 87 percent of all women surveyed said they would support candidates who prioritize increasing access to contraception and fertility treatments.

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