Birth Control Rights and Bans in the U.S.

The main purpose of birth control is to prevent pregnancy. Birth control methods include oral pills, medical devices, and physical barriers. Some methods can also decrease the risk of sexually transmitted infections (STIs) or treat medical conditions.

Birth control laws regulate how and when you can access contraception. These laws shift as scientific, cultural, and political factors affect the United States.

Family planning is also very personal. It involves making intimate life decisions, such as if and when you will have children. People often rely on moral or religious beliefs to guide them. Those beliefs also extend to how they vote and view reproductive rights. Birth control is part of a long political controversy about the American way of life.

Find out how the history of birth control laws may shape their future below:

• Early family planning in the U.S.
• When did the U.S. first ban birth control?
• Is birth control a constitutional right?
• Will birth control be banned?
• Which states protect a right to birth control?
• Emergency contraception laws
• Do I need my parent’s consent to get birth control?
• Do health insurers have to cover birth control?
• Timeline of birth control developments
• Protecting your birth control rights

Early Family Planning in the U.S.

In early U.S. history, most modern birth control methods were not available. There were fewer and less reliable contraception options. People often used early reproductive technology, such as herbal concoctions, to prevent or end pregnancies.

At the beginning of the 1800s, reproductive laws were less complex than today. There were no federal laws restricting contraceptive methods. Even early-stage abortions were generally legal.

When Did the U.S. First Ban Birth Control?

The first birth control bans started at the state level in the mid-1800s. Public opinion began to shift. Religious activists considered birth control and abortion as obscene and dangerous.

Congress passed the Comstock Act in 1873. This law prohibited the distribution of birth control materials. It banned mailing or transporting any items “designed or intended for the prevention of conception or procuring an abortion,“ including advertisements and general information.

The Comstock Act was never fully repealed, but lawmakers and judges severely limited its scope. In 1936, a federal appeals court ruled the Act doesn’t prohibit mailing those items if they are otherwise legal. The government hasn’t since enforced the Act for legal contraceptives or abortifacients.

The use of birth control was not banned at the federal level. After the Comstock Act, some states began to ban birth control use. Connecticut notably passed its own Comstock law in 1879. Under this law, married couples could not use birth control devices or medication in the state.

Is Birth Control a Constitutional Right?

Yes, the U.S. Supreme Court recognized a constitutional right to freely practice “safe sex.” This means state bans on birth control use would be unconstitutional.

In 1965, the Supreme Court struck down state contraception bans in Griswold v. Connecticut. This ruling recognized a federal right to birth control. The justices found that Connecticut’s ban intruded on marital privacy rights.

The Court has since clarified that no person may be prevented from using contraceptives, regardless of their marital status. The state also cannot interfere in deciding whether to have children.

Birth Control Rights and Abortion Rights

Abortion rights overlap in some ways with birth control laws. They are both concerned with autonomy for health and family planning. Yet, they are separate matters under federal law.

In Roe v. Wade, the Supreme Court recognized a constitutional right to abortion. Yet decades later, the Supreme Court reversed this ruling in Dobbs v. Jackson Women's Health. The new ruling in Dobbs states that there is no constitutional right to abortion.

Abortion bans are now a matter of state law. However, Dobbs did not directly address birth control.

Will Birth Control Be Banned?

Future birth control law is uncertain, but Dobbs sparked new speculation about bans. Public conversation questioned whether lawmakers and judges will also reevaluate birth control.

The federal right to birth control comes from a Supreme Court decision. So, like Dobbs overturning Roe, a future case could potentially reverse Griswold. The Court could change how it interprets the Constitution. Because the text doesn’t explicitly mention contraception, the Court might decide it doesn’t support this right.

Overturning Griswold would likely affect birth control access similarly to abortion access after Dobbs. States might decide whether to limit birth control and to what extent.

However, future birth control bans are still speculative. Many laws and court cases make up the network of reproductive rights. Total contraception bans would require a dramatic change to the legal landscape.

The Race To Protect Birth Control Rights

Some lawmakers have tried to codify birth control rights after Roe. These efforts have seen mixed success.

At the federal level, bills like the Right to Contraception Act failed to pass the Senate. The Biden administration described access to reproductive health care as a fundamental right.

If federal law changes, state laws may determine residents’ rights. Some states, like Maryland, have expanded protections for abortion and birth control.

Reproductive rights are a divisive political area. The controversy over birth control and abortion laws will certainly continue. 

Which States Protect a Right to Birth Control?

While each state’s laws vary, some states that explicitly recognize birth control rights include:

• California
• Colorado
• Florida
• Illinois
• Maryland
• Massachusetts
• Michigan
• Minnesota
• New Jersey
• New Mexico
• Ohio
• Oregon
• Rhode Island
• The District of Columbia
• Vermont
• Washington

These state laws may ensure residents’ birth control rights if federal protections end. Many states also have laws and rulings that help protect contraception access. The constitutional right to travel may also allow people to get reproductive care in another state without facing penalties in their home state.

Emergency Contraception Laws

Emergency contraception (EC) pills are also known as "the morning-after pill." The Food and Drug Administration (FDA) approved it as an over-the-counter medication in 1996.

The first EC pill was sold as Plan B. It delays ovulation, so no ovum (egg) is available for fertilization. The pill prevents pregnancy if taken up to five days after unprotected sex.

Some intrauterine devices (IUDs) can also offer emergency contraception. The IUD implantation must also occur within five days.

EC is available for consumers of all ages. The FDA originally approved Plan B for women over 18. Women 17 and younger needed a prescription until a 2009 court order removed this restriction.

Does Emergency Contraception Cause Abortion?

No, EC methods don’t cause an abortion. Morning-after pills and IUDs prevent pregnancy instead of ending one. They may stop the ovulation, fertilization, or implantation of an egg.

EC doesn’t work if you are already pregnant. It functions more like birth control than abortion methods. That’s why emergency contraception and abortion are generally distinct legal matters.

Can States Ban Morning-After Pills?

Under the Dobbs decision, morning-after pills and IUDs remain legal at the federal level. Yet, states can impose certain EC restrictions.

Several states have passed various emergency contraception laws, including:

• Laws generally allowing emergency contraception
• Laws requiring hospitals or health care facilities to provide information about emergency contraception
• Laws requiring hospitals to initiate EC therapy for sexual assault victims
• Laws allowing pharmacists to initiate emergency contraception when working with a physician
• Laws allowing pharmacists to administer EC after they have completed a training program

Medication abortions are not permitted in many states now under certain circumstances. Those medication abortions generally use mifepristone and misoprostol, which differ from EC.

Do I Need My Parent’s Consent To Get Birth Control?

If you are a minor, your state’s laws might require your parent’s permission. But in many cases, minors can get birth control independently through their health care provider. Some contraceptives are also available over the counter, including condoms and FDA-approved oral birth control pills.

Here is a breakdown of state parental consent laws related to birth control:

• 25 states allow minors to get contraceptive services without parental consent. Examples of these states are Arizona, Idaho, and Iowa.

• 24 states allow minors to get birth control under certain circumstances, such as if a physician identifies a health risk or if the minor is married. Examples of these states are Texas, Missouri, and Indiana.

• A few states have no explicit policy on parental consent laws. These states typically allow physicians to decide whether to prescribe birth control to minors without parental consent.

Parental consent laws require federally funded clinics to notify parents.

Do Health Insurers Have To Cover Birth Control?

Most employers must include coverage in their health plans under federal law. There are legal exceptions for certain types of employers.

Specific coverage for birth control also varies based on state laws. Usually, employer health insurance plans must cover at least some level of birth control medical care. Most employers must fully cover birth control costs.

State laws and employers may decide whether to cover:

• Oral contraceptives
• Diaphragms
• Sterilization
• Intrauterine devices (IUDs)
• Norplant, Implanon, or Nexplanon implants

However, the Supreme Court has held that certain employers may refuse to cover birth control in employee health insurance plans.

Birth Control Coverage Under the Affordable Care Act

Health insurance coverage is significant for birth control rights. Costs are a potential barrier to health care access, including access to contraception.

The Affordable Care Act (ACA) mandated coverage for contraception and preventive health services. The ACA applies to insurance plans in all states. Insurers must cover birth control without any out-of-pocket costs.

Yet, some employers can seek accommodations or exemptions based on religion.

Religious Right of Refusal

The ACA allowed some employers to refuse birth control coverage in their insurance plans, including:

• Churches
• Associations of churches
• Religiously affiliated schools
• Religiously affiliated charities and nonprofits

Closely held corporations also gained this right of refusal in 2014. In Burwell v. Hobby Lobby, the Supreme Court ruled that the government can’t compel them to provide contraceptive coverage. Corporations can refuse due to religious objections.

In 2017, the Trump administration extended the Hobby Lobby decision. The administration allowed employers to exclude contraceptive coverage from employee health plans. It also made this exclusion easier for employers based on religious or moral objections.

Timeline of Birth Control Law Developments

Birth control laws have responded to changing national needs and medical science. Some of these developments included:

• 1873: The Comstock Act banned birth control distribution.

• 1912: Margaret Sanger, a public health nurse, started the modern birth control movement by writing a newspaper column. Sanger was concerned about frequent childbirth, miscarriages, and unsafe abortions affecting women.

• 1916: Sanger opened the nation's first birth control clinic in New York City.

• 1921: Sanger founded the American Birth Control League, which later became Planned Parenthood in 1942.

• 1960: Birth control pills and IUDs became available to U.S. consumers.

• 1965: The Supreme Court in Griswold v. Connecticut struck down state laws prohibiting birth control use by married couples.

• 1970: Congress established federal funding for family planning services. Title X of the Public Health Service Act funds reproductive health care services for low-income patients.

• 1972: The U.S. Supreme Court decided Eisenstadt v. Baird. This decision gave unmarried couples constitutional protections for contraception use.

• By 1980, contraceptive services were a part of Medicaid.

• 1991: The FDA approved the first birth control implant.

• 1998: The FDA approved the first emergency contraception pill.

• 2010: President Obama signed the ACA, which expanded state Medicaid programs and contraceptive care. This law went into effect in 2012.

• 2014: The Supreme Court decided Burwell v. Hobby Lobby, which allowed religious employers’ insurance plans to deny contraception coverage.

• 2017: The Trump Administration expanded the ACA’s right of refusal to include corporations that claim religious or moral objections.

• 2023: The FDA approved the first over-the-counter birth control pill.

Protecting Your Birth Control Rights

Birth control can affect your health and your family’s future. But your rights may change under new birth control laws and cases.

If you live in a state with controversial birth control laws, get legal advice. Speak with an experienced family law attorney about contraception and abortion issues. Reproductive law cases are highly personal. Your lawyer can advocate for your rights.