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WASHINGTON — U.S. Senate Democrats tried to pass legislation Wednesday that would guarantee women can continue using contraception if the U.S. Supreme Court overturns the long-standing precedent, the way it did with abortion.
But Iowa Republican Sen. Joni Ernst blocked their efforts by objecting to Massachusetts Democratic Sen. Ed Markey’s request for unanimous consent to pass the bill, saying the measure went too far. Under Senate procedures, no roll call vote was taken.
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Unanimous consent is a fast-track way to pass bills in the Senate, but any senator can object and block the legislation. The other path forward for bills requires the votes of 60 senators in the evenly divided Senate to advance beyond a filibuster.
Ernst instead offered a proposal that would have incentivized manufacturers of oral birth control to file for over-the-counter approval from the U.S. Food and Drug Administration, to give those applications priority review and to waive the filing fee.
“With my bill, women 18 and older can walk into the local pharmacy, whether that be in Sidney, Iowa, or the deepest parts of Manhattan, and get the routine-use birth control they need,” Ernst said.
Markey objected, saying Ernst’s bill wouldn’t actually protect women’s right to access contraception if the Supreme Court overturns the cases that have recognized the right and if state governments seek to restrict or ban birth control.
“The over-the-counter option doesn’t help patients if their states are chipping away at their right to birth control,” Markey said.
Minnesota Democratic Sen. Amy Klobuchar spoke in support of Democrats’ legislation, saying the threat to birth control access is not hypothetical, with conservative Republican lawmakers in states throughout the country discussing and proposing bills that would limit access to birth control.
“If the Supreme Court isn’t going to protect people’s fundamental rights, then everyone in this chamber has to decide whether or not they’re going to do it,” Klobuchar said. “And that includes making sure everyone can access contraception.”
The U.S. House voted 228-195 last week to approve legislation from North Carolina Democratic Rep. Kathy Manning that would ensure patients can continue accessing contraception and that health care providers can continue prescribing it. The measure Democratic senators tried to pass Wednesday is a companion bill.
The bills, as well as legislation that would ensure patients can travel out-of-state for abortion access and a measure to guarantee same-sex and interracial couples can continue marrying, are part of Democrats’ response to the U.S. Supreme Court ruling that overturned the constitutional right to an abortion.
Democratic lawmakers and advocates began raising alarm bells the day of the ruling about Associate Justice Clarence Thomas’ concurring opinion in the case.
Thomas, who was nominated by President George H. W. Bush, wrote that the justices should reconsider all the precedents that rely on the substantive due process legal reasoning that kept abortion legal nationwide for nearly half a century.
Thomas specifically cited the 1965 Griswold v. Connecticut ruling that recognized married couples’ right to use contraception, the 2003 Lawrence v. Texas ruling that invalidated laws criminalizing adult private consensual sexual relationships, and the 2015 Obergefell v. Hodges case that legalized same-sex marriages.
Markey argued during floor debate Wednesday that Thomas’ concurring opinion in the abortion case was a “call to action that Republicans and red states are eagerly heeding.”
“In his opinion, Justice Thomas made clear that Americans had too many privacy rights under the United States Constitution, that the Supreme Court had erred in recognizing those rights and that the court should take them away,” Markey said. “Just as it did with the right to abortion.”
Markey said Congress “can’t sit idly by and watch as decades of precedent, privacy rights and progress are violated.”
The House-passed contraception bill and the Senate version would specifically protect oral contraceptives, long-acting reversible contraceptives, emergency contraceptives, internal and external condoms, injectables, vaginal barrier methods, transdermal patches, and vaginal rings, or other contraceptives.
The measures would allow the attorney general, an individual or a health care provider to file a civil lawsuit against any government or person who violates the law.
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