Accessing Birth Control

Birth control refers to any method used to prevent a pregnancy. There are many forms of birth control, including:

• Barrier methods (like condoms, cervical caps, and spermicide)
• Fertility awareness and natural family planning apps
• Long-acting reversible contraceptive (LARC), like an intrauterine device (IUD)
• Hormonal medications like birth control pills or emergency contraception
• Permanent sterilization (vasectomy or tubal ligation)

Reproductive health care plays a crucial role in overall health and well-being. This article discusses legal issues and rights related to birth control access. Learn more about:

• A historical overview of birth control laws in the U.S.
• Laws that enable and restrict access to birth control
• Low-cost and telehealth options for birth control and reproductive health services
• Forms of contraceptives available over-the-counter without a prescription
• And more

Birth Control Background and History

Birth control is an ancient practice. Evidence exists that even primitive peoples took medicines to prevent unintended pregnancy. Birth control became a political and legal issue in the United States in the 1800s.

At that time, the average birth rates for white women dropped significantly. The reason was in part because of more available scientific information about conception. This led to more effective birth control and broader access to contraception.

Concerns about decreased reproduction among white women and moral and religious beliefs led to legislation limiting and sometimes banning birth control and abortion. Many found the discussion of birth control to be obscene.

This culminated in the Comstock laws, which made sending obscene materials through the mail illegal. The Act's definition of obscenity included birth control devices.

In the early 1900s, a public health nurse named Margaret Sanger started the modern birth control movement. She wrote articles and established the country's first birth control clinic.

In the latter half of the century, birth control pills and IUD devices were developed. Then, the Supreme Court's decision in Griswold v. Connecticut struck down state laws banning birth control use by married couples.

Griswold v. Connecticut

The Supreme Court's 1965 decision in Griswold v. Connecticut was an important victory for those seeking reproductive rights. Police arrested and fined a doctor and the Planned Parenthood League of Connecticut executive director for giving contraception advice to married couples. This was against Connecticut state law.

The pair sued the state of Connecticut in response. The Supreme Court found the state law against contraceptives violated the "zone of privacy" implied in the Constitution. They employed a "penumbra" theory to show that although no right or amendment directly protects contraception, their interpretation establishes the right to privacy, including "marital privacy."

Dissenting judges disagreed with a far-reaching interpretation of a Constitutional right to privacy. But they agreed that the law at issue was outdated and unenforceable. The decision only concerned contraception and married couples. But, it formed the foundation of most later litigation on reproductive rights.

In 1972, in the case of Eisenstadt v. Baird, the U.S. Supreme Court expanded this ruling and guaranteed unmarried couples the right to access contraception.

Several significant measures were legislated in later decades, including:

• Federal funding for family planning services
• Availability of birth control for those on Medicaid
• Inclusion of birth control in insurance programs

But, one opponent was successful in a 2014 case before the Supreme Court. The Court found that a corporation may object to providing birth control where it violates the corporation's religious beliefs.

Employer Health Coverage and Birth Control: The Hobby Lobby Case

In 2014, the issue of whether employers could deny covering birth control in their health insurance plans went before the U.S. Supreme Court. This case was Burwell v. Hobby Lobby.

In 2012, craft supply company Hobby Lobby filed a lawsuit in an Oklahoma-based federal court. It filed the lawsuit against the Department of Health and Human Services (HHS) head. In the lawsuit, Hobby Lobby challenged the federal law under the Affordable Care Act that forced employers to cover birth control.

In their arguments before the Supreme Court, Hobby Lobby claimed that the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (RFRA) protected their right to deny covering birth control, despite the Affordable Care Act.

Ultimately, the case went before the U.S. Supreme Court on appeal. The U.S. Supreme Court sided with Hobby Lobby. It said “closely held corporations" can deny covering birth control in their employee insurance plans.

In the wake of this decision, getting birth control through employee insurance plans has become more difficult. As a result of this Supreme Court decision, employers can now deny coverage for birth control.

Low-Cost Options for Reproductive Health Care

There are options for low-cost and no-cost birth control. Organizations like Planned Parenthood offer individuals who meet eligibility requirements reproductive health care at reduced costs or on a sliding scale. Individuals who are not low-income can still access these health centers and either use their insurance or pay the full cost.

Providers at these organizations can address a full range of reproductive health-related issues. They can also prescribe:

• Intrauterine devices (IUDs)
• Emergency contraception
• Abortion services
• Prescription birth control

The Title X Family Planning Program (Title X) provides money to publicly funded and nonprofit groups in the family planning services industry. It also supports related sectors in family planning research and training.

Accessing Birth Control Over-The-Counter

Traditionally, hormonal contraceptives required a doctor’s prescription. Making certain contraceptive methods available over-the-counter (OTC) represents a shift in healthcare accessibility and legal regulation.

In 2023, The U.S. Food and Drug Administration (FDA) approved Opill, a progestin-only pill, for OTC use. Opill is the first daily hormonal oral contraceptive available without a prescription.

Emergency contraception (often called “the morning after pill”) has been available OTC for individuals 18 and older since 2006. In 2009, the FDA lowered the minimum age to buy emergency contraception without a prescription to 17. In 2013, the FDA removed age restrictions entirely, allowing all to buy emergency contraception without a prescription.

The primary argument in favor of OTC sales of limited contraceptive care is increased accessibility. The ability to purchase birth control OTC minimizes barriers to access, including:

• Lack of insurance coverage
• Lack of established relationship with a gynecologist or primary care clinician
• Geographical limitations
• Privacy concerns

Advocates argue that OTC access aligns with the right to make autonomous decisions about one's reproductive health. Opponents raise concerns about the safety of usage without professional guidance, misuse, or moral implications.

In some states, pharmacists can legally prescribe some forms of hormonal birth control.

Accessing Birth Control Through Online Platforms and Providers

You can also obtain certain types of contraception through online telehealth providers. These platforms allow individuals to get contraceptives prescribed by a licensed physician without an in-person visit. This advance improves accessibility for those with busy schedules or living in rural areas.

The process often involves completing a secure online questionnaire about medical history and preferences. If necessary, you may also complete a virtual consultation. The prescription contraceptives are delivered to your home instead of a pharmacy.

Online providers offer several forms of contraception, including:

• Pills
• Patches
• Vaginal rings
• Emergency contraception

Depending on the platform, prescribed medicine can be billed through a patient’s insurance or paid for out-of-pocket. Out-of-pocket costs for these services are competitive and can be more affordable than in-person visits.

Fertility Awareness Apps as Birth Control

In 2018, the FDA approved Natural Cycles, a natural family planning mobile app, as an approved form of contraception. This app uses an algorithm to predict a user's fertility status based on daily body temperature readings and menstrual cycle information.

FDA clearance of Natural Cycles as a Class II medical device makes it the only fertility awareness app used and marketed as a form of birth control in the U.S. This approval recognized the app as a viable option for non-hormonal birth control.

Because of its FDA clearance, most private insurance plans cover Natural Cycles subscriptions.

Legal Questions About Contraceptive Access? Get a Lawyer's Help

The overturning of Roe v. Wade in 2022 has significant implications for women's right to access abortion care. The Supreme Court's decision did not directly address contraceptive use. But, it could impact reproductive health care on a broad scale.

The legal landscape of birth control and abortion laws can be challenging and ever-changing. You may face barriers to accessing birth control or want clarity on your rights. A knowledgeable attorney can help you understand your rights and protections under the law.

Meeting with a lawyer can help you understand your options and how to best protect your reproductive health rights. A lawyer familiar with your state’s laws can help. Contact a family law attorney in your area to learn more.