ACCESS TO CONTRACEPTION
EDITED BY ASHLEY DHONG, EMILY COSTER, ERIKA HINKLE, RILEY SMITH, &
PAYTON SMALL GANNON
I. INTRODUCTION.......................................... 263
II. PRESCRIPTION BIRTH CONTROL AND EMERGENCY CONTRACEPTION: A
HISTORY............... ............................... 264
A. TYPES OF CONTRACEPTION DEFINED ....................... 264
B. THE RIGHT TO ACCESS TO CONTRACEPTION . . . . . . . . . . . . . . . . . 268
C. THE PATIENT PROTECTION AND AFFORDABLE CARE ACT ........ 270
III. BARRIERS TO ACCESS TO CONTRACEPTION ...................... 271
A. REFUSAL CLAUSES AND RELIGIOUS OPPOSITION............... 271
1. The Social and Legal Controversy Surrounding
Contraception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
2. The History of Refusal Clauses. . . . . . . . . . . . . . . . . . . . . . . . 273
3. Anti-Discrimination vs. Employers’ Religious Opposition 275
5. Little Sisters of the Poor v. Burwell . . . . . . . . . . . . . . . . . . . . 278
B. EFFORTS TO INCREASE OR RESTRICT ACCESS TO CONTRACEPTION . . 279
1. Over-the-Counter Accessibility. . . . . . . . . . . . . . . . . . . . . . . . 280
2. State Refusal Clauses and Medicaid Restrictions ........ 284
3. Regulation of Abortifacients .......................... 287
C. GROUPS FACING HEIGHTENED BARRIERS TO ACCESS ........... 288
1. Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
2. Low-Income Women ................................ 291
3. Other Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
IV. C ONCLUSION ........................................... 296
I. INTRODUCTION
In the 1965 case Griswold v. Connecticut, the United States (U.S.) Supreme
Court struck down a state law that prohibited married couples from obtaining and
using contraception as a violation of their marital right to privacy.
1
Through
Griswold’s progeny, the Court explained that all individuals, regardless of marital
status, have a fundamental right to privacy that encompasses a right to contracep-
tion.
2
However, although the legal and societal landscape has greatly changed
since 1965, many individuals still face a myriad of barriers in accessing contra-
ception.
3
The modern debates surrounding this issue require balancing the
1. Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965).
2. See Eisenstadt v. Baird, 405 U.S. 438, 443 (1972); Carey v. Population Servs. Int’l, 431 U.S. 678,
3. See infra Part III.
263
conflicting rights of various stakeholders: pro-abortion and anti-abortion advo-
cates, health care providers and patients, and employers and employees.
The refueled controversy surrounding contraception, sparked by requirements
under the Patient Protection and Affordable Care Act (ACA) and cases like
Burwell v. Hobby Lobby,
4
continues to drive a national debate over religious free-
dom, personal autonomy, and access to medical care. The precise extent of the free-
dom to refuse contraception coverage due to religious objections remains the
subject of litigation, particularly in light of the Supreme Court’s 2022 decision in
5
Although Griswold remains intact under the Dobbs decision, the dissenting Justices
in Dobbs noted that the legal justifications for the majority’s decision could poten-
tially destabilize the rights provided under Griswold if challenged in the future.
6
This Article provides an overview of the right to access contraception, beginning
with the definitions of different types of contraception in Section II.A, a summary of
the history of the right to access contraception in Section II.B, and a discussion of
recent developments since the passage of the ACA in Section II.C. Part III discusses
barriers to access that people who can become pregnant still face, including refusal
clauses
7
Refusal clauses are statutes that protect health care providers from liability if they refuse to
dispense contraception based on their religious or moral opposition. Refusal Laws: Dangerous for
Women’s Health, NARAL PRO-CHOICE AM. (Jan. 1, 2017), https://perma.cc/Q73N-TPFE [hereinafter
NARAL: Refusal Laws].
and religious opposition in Section III.A, recent efforts to increase or restrict
access in Section III.B, and heightened barriers faced by particular groups in Section
III.C.
II. PRESCRIPTION BIRTH CONTROL AND EMERGENCY CONTRACEPTION: A HISTORY
To better understand the history of prescription birth control and emergency con-
traception (EC), this section discusses (A) various types of birth control and EC, (B)
the right to access contraception generally, and (C) the current state of the ACA.
A. TYPES OF CONTRACEPTION DEFINED
People in the U.S. use a variety of contraception methods to aid in family plan-
ning and the prevention of unplanned pregnancy. As of 2025, there are approxi-
mately seventy-eight million women
8
of reproductive age in the U.S.
9
Women of Reproductive Age (15-49) Population (Thousands), WORLD HEALTH ORG., https://
perma.cc/7CER-SH75.
According
5. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 383–84 (2022) (Breyer, Sotomayor &
Kagan, JJ., dissenting).
6. Id.
7.
8. Throughout this Article and the Annual Review of Gender and the Law we use the word “women”
to refer to people with female anatomy. This choice is to recognize the sexism and power structures at
the root of these laws. However, we recognize that people who do not identify as women can get
pregnant and give birth, and their experiences are important as well. Generally, we have made the
decision to mirror the language of our sources, using both the terms “women” and “pregnant people”
depending on the circumstances.
9.
264 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:263
to a study by Guttmacher Institute in 2018, forty-six million women of reproduc-
tive age in the U.S. were sexually active and did not wish to become pregnant.
10
Contraceptive Use in the United States by Demographics, GUTTMACHER INST. (May 2021),
https://perma.cc/LAD9-476S [hereinafter Contraceptive Use in the United States by Demographics].
Data collected between 2015–2017 found that, among women ages 15–49,
approximately 65% were using contraception,
11
Kimberly Daniels & Joyce C. Abma, Current Contraceptive Status Among Women Aged 15–49:
United States, 2015–2017, CTRS. FOR DISEASE CONTROL & PREVENTION (Dec. 2018), https://perma.cc/
BYP9-VVLA.
and a study from 2022 found that
90% of women ages 18–64 had used at least one contraceptive method at some
point in time.
12
Brittni Frederiksen, Usha Ranji, Michelle Long, Karen Diep, & Alina Salganicoff, Contraception
in the United States: A Closer Look at Experiences, Preferences, and Coverage, KFF (Nov. 3, 2022),
https://perma.cc/L4AC-PL7G.
Another study from Guttmacher found that, in 2018, among con-
traceptive users aged 15–49 in 2018, female permanent contraception was the
most common method used (28%), followed by pills (21%), male condoms and
IUDs (both 13%).
13
Contraceptive Use in the United States by Method, GUTTMACHER INST. (May 2021), https://
perma.cc/TG85-YJA6.
Emergency contraception is also widely used among women
of reproductive age; data collected from 2015 suggests that 23% of sexually-
experienced women aged 15–44 have used EC pills at some point in time.
14
Use of Emergency Contraception in the United States, GUTTMACHER INST. (May 2021), https://
perma.cc/WF2Q-GX27.
There are several different methods of oral contraceptive that are colloquially
referred to as “The Pill,” most of which contains two hormones — estrogen and
progestin — that stop the ovaries from releasing eggs and thicken cervical mucus
to block sperm from getting to the egg.
15
Birth Control, U.S. FOOD & DRUG ADMIN., https://perma.cc/W982-VFSA [hereinafter Birth
Control].
The Pill requires a prescription from a
health care provider.
16
A second form of oral contraception is the progestin-only
pill, or the “Mini Pill,” which contains only the one hormone and has a similar
effect to the combination pill.
17
While the progestin-only pill typically also
required a prescription from a health care provider,
18
the Food and Drug
Administration (“FDA”) approved a non-prescription version of this form of oral
contraceptive in 2023.
19
FDA Approves First Nonprescription Daily Oral Contraceptive , U.S. FOOD & DRUG ADMIN.
(July 13, 2023), https://perma.cc/ZZ4U-ETCH.
Another form of birth control is implantable contraceptives, which are becom-
ing increasingly popular.
20
Some implantable contraceptives are inserted under
the skin by a licensed medical professional, where they can remain for years.
21
Birth Control Implant, PLANNED PARENTHOOD, https://perma.cc/XVT2-9J4Z.
The implants can be removed by a licensed medical professional at any time.
22
10.
11.
12.
13.
14.
15.
16. Id.
17. Id.
18. Id.
19.
20. Contraceptive Use in the United States by Demographics, supra note 10.
21.
22. Id.
2025] ACCESS TO CONTRACEPTION 265
