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BY: SUSAN TEBBEN – Ohio Capital Journal

Editor’s Note: This article is part of a series looking at the language of Ohio Issue 1 and the reproductive rights it would impact. The full language of the amendment can be found here.

In the Nov. 7 general election, Ohioans will decide whether or not to approve Issue 1, a constitutional amendment for reproductive rights.

While the language of the amendment focuses primarily on abortion, it also lists other rights that would be cemented into the state constitution, including miscarriage care, fertility treatments, contraception, and the right to continue one’s own pregnancy. Today we will look at how and why the proposed amendment seeks to protect access to contraception.

The use of contraception is not illegal in Ohio, and though it’s commonly called “birth control,” the medications are also used for other conditions, like ovarian cysts, polycystic ovary syndrome and endometriosis symptoms.

Push to ‘reconsider’ contraception case

Contraception has long been a target of debate, with fears of further regulations increasing after U.S. Supreme Court Justice Clarence Thomas brought up Griswold v. Connecticut during his concurrence to Dobbs v. Jackson Women’s Health, the 2022 decision that overturned the half-century of abortion legalization given in Roe v. Wade.

The ruling in Griswold overturned a Connecticut law from the 1800s that banned the use of “any drug, medical device or other instrument in furthering contraception,” particularly in marriages. The question at the heart of the Griswold case: “Does the Constitution protect the right to marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?”

The court found that the right to privacy held in the Bill of Rights prohibited states from banning contraception for married couples.

However, in agreeing with the Dobbs decision, Thomas said the nation’s highest court should also “reconsider” cases such as Griswold, with new reflection on the 14th Amendment.

“After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated,” Thomas wrote in his 2022 concurrence.

A congressional effort that was put forth in July 2022 to codify birth control access passed the U.S. House. The effort had unanimous Democratic support, but only had the support of one Ohio GOP representative, former Rep. Anthony Gonzalez.

The effort was blocked by the U.S. Senate that same month.

There is federal law that requires health insurance coverage for prescription female contraceptives, but federal law also allows for a refusal clause “that allows churches, associations of churches, religiously affiliated elementary and secondary schools and, potentially, some religious charities and universities to refuse,” according to an analysis by the Guttmacher Institute.

The institute’s analysis also showed that, as of September 2023, Ohio’s only state-level regulation is an insurance coverage requirement for extended supplies of contraception.

“The state’s law allows pharmacists to dispense the full amount of a prescription at one time, including contraception, but there is no requirement that health insurance plans cover the cost of accessing a year’s worth of contraceptives at one time,” the Guttmacher research stated.

Medicaid recipients are allowed access to “pregnancy prevention services” under the Ohio Administrative Code, including “contraceptive management,” along with “fertility awareness, natural family planning (the use of fertility awareness to track ovulation), and risk factor reduction,” according to the code.

In an August debate on the previous Issue 1, Secretary of State Frank LaRose joined Ohio Right to Life leader Mike Gonidakis in calling claims that contraception regulations could be on the table in the state “fear-mongering,” saying “no reasonable person is talking about banning the use of contraceptives.”

Back in 2022, state Rep. Jean Schmidt, R-Loveland, who introduced a bill that, if passed, would have banned all abortions in Ohio without exceptions for rape or incest, said she would “listen to both sides of that debate” over whether to ban contraceptions during a July 2022 radio interview.

Sex ed

Researchers and advocacy groups say abstinence-only education and anti-abortion politics have already had their impact in the state, and the need to keep contraception at the forefront continues.

Even in his analysis of Issue 1, Ohio Attorney General Dave Yost spoke of access to contraception (and other rights listed in the proposed amendment), saying those topics “are harder to assess because Ohio does not have specific statutes addressing minors’ access to these medical treatments or products.”

When Roe v. Wade — the landmark U.S. Supreme Court case that legalized abortion nationwide — was overturned in 2022, Ohio groups immediately feared the already inconsistent sex education standards in the state would take a hit as well.

State law requires Ohio schools to emphasize abstinence, but does not require them to include lessons on consent, sexual orientation, or gender identity, according to a review by the Sexuality Information and Education Council of the United States (SIECUS).

In fact, Ohio House GOP members introduced a bill in 2022 that would ban the use of sexual orientation and gender identity as a topic in Ohio schools. State Rep. Mike Loychik, R-Bazetta, the bill’s co-sponsor, said at the time that the bill would “ensure that sexual orientation and gender ideology are not taught in kindergarten through third grade.”

But bills like House Bill 616 could also “impact age-appropriate sex education,” according to SEICUS, which said those and other policies pushing abstinence-only or no education at all to certain ages can result in district-by-district decisions on sex education.

“Local control over sex education presents unique challenges that have resulted in glaring disparities in the quality of sex education that students receive,” SEICUS said in an Ohio analysis.

The March 2023 research used CDC data from the 2019-2020 school year that showed only 38.3% of Ohio’s schools required a course on methods of contraception other than condoms in grades 6, 7 or 8, whereas 82.5% taught high schoolers about methods other than condoms.

According to the CDC data, only 37% of Ohio schools grades 6 through 12 require more than one health education course.

The impact of a lack of standardized sex education could have longterm effects, advocates suggest, particularly in the area of unintended pregnancies.

The U.S. Department of Health and Human Services encourages the use of contraception in its “Healthy People 2030” objective, to help with pregnancy planning and prevention of unintended pregnancies.

“Nearly half of pregnancies in the United States are unintended, and unintended pregnancy is linked to many negative outcomes for both women and infants,” the federal agency stated on its Healthy People 2030 website.

Though they acknowledge that teen pregnancy has gone down in the U.S., they cite data that shows “close to 200,000 babies are born to teen mothers every year in the United States.”

“Adolescents are at especially high risk for unintended pregnancy,” HHS stated.

This article clarifies the vote of Ohio’s U.S. Representatives on the federal birth control bill.

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