On "Forbes Newsroom," attorney Harry Nelson spoke about the Right to Contraception Act following its defeat in the Senate by Republicans, and why Democrats are claiming that it is under threat.
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NewsTranscript
00:00 Hi everyone, I'm Maggie McGrath, editor of Forbes Women. Today, the U.S. Senate voted
00:08 on the Right to Contraception Bill, which would have helped codify the right to birth
00:13 control into federal law. That bill was defeated on procedural grounds, and here to explain
00:19 more is Harry Nelson. He's a lawyer and the founder of Nelson-Harteman. He has also written
00:25 two books on health care. Harry, thanks so much for joining us.
00:29 Great to be with you.
00:30 Okay, so let's just start high level here. What is the Right to Contraception Act?
00:36 So the Right to Contraception Act is a federal bill that would essentially create in federal
00:41 law a guarantee of access to contraception and essentially prohibit states from taking
00:50 any action that would limit access and creating rights to sue states if they tried to limit
01:00 access to contraception.
01:03 Why are we talking about contraception today? How under threat is it? We know that abortion
01:08 is a state-by-state question ever since Roe v. Wade fell in 2022, but why are Senate
01:15 Democrats focusing on birth control?
01:18 So what we saw after the repeal of Roe v. Wade in the Supreme Court's decision in the
01:25 Dobbs case, we saw that abortion was already dealt with, but contraception was coming to
01:34 the fore as the next battleground. And right away we began to see questions about whether
01:41 certain contraceptions, by the way, some forms of which can be taken after the fact, like
01:47 for example, the medication Ella, whether those were going to be attacked because they
01:52 were interfering with this idea of life beginning at conception.
01:56 And essentially, more broadly, all contraception is really an issue of reproductive health
02:03 access. And so the fear that was expressed by a lot of reproductive health advocates
02:09 and also experienced on the ground by doctors, by pharmacies that were involved with some
02:14 of these products was immediately states were and state lawmakers and officials were reading
02:21 the abortion decisions as starting to put limits on contraception.
02:24 So we saw, by the way, in the FDA case over the Mifflin Pristone that there was, you know,
02:31 that advocates for for using the Comstock Act, an old late 1800s law, really also goes
02:39 directly to the issue of contraception.
02:41 So it's another place where the issue of the government's right to protect life is and
02:48 the individual's right to reproductive health control over decisions is coming to a head.
02:55 From your assessment as a lawyer, how under threat is birth control in the US right now
02:59 in twenty twenty four?
03:03 I think that we're still not at a point where, you know, for all types of contraception,
03:07 we have to remember we're talking about a whole variety of types of contraception, again,
03:12 from classic oral contraception to medications that can be taken, you know, after the fact
03:19 in the days immediately after a potential event leading to pregnancy.
03:23 You know, are we talking about a lot of different kinds of of contraception that in some of
03:28 the more restrictive states we have seen reports of pharmacies being unwilling to carry products,
03:34 for example, unwilling to give out medications without confirmation that there's no fetal
03:38 heartbeat.
03:39 And we've seen a fear on the part of health, all kinds of health care providers, hospitals,
03:44 doctors, pharmacies around things that are, you know, adjacent to to abortion in the area
03:51 of contraception.
03:52 So it's not this this is not a fight that is fully joined, but it is clearly, you know,
03:57 on the horizon as a sort of next up issue in this battleground.
04:04 It's interesting you say that it's not a fight that is fully joined with abortion, because
04:08 I watched some of the senators make cases against this bill today.
04:14 I listened to the testimony of Senator Ted Cruz, Senator Joni Ernst, and they both very
04:20 quickly invoked abortion.
04:22 Ted Cruz said the Democrats want abortion on demand.
04:26 And it seemed to be taking something that was supposed to be talking about birth control
04:31 and pulling it back into the realm of abortion.
04:35 So I wanted to ask you this bill today's vote.
04:39 Was this political posturing on the part of the Democrats?
04:42 Was this just a chance to engage in political theater around the issue of reproductive health?
04:48 Or did this have a real chance of turning into legislation?
04:51 I mean, I think using this as a sort of reminder to crystallize in the minds of voters that
05:00 there is a divide on these issues, right?
05:03 So I think that, you know, the Democratic belief was that many Republican senators will
05:09 object to this legislation and to this protection for exactly the reasons that you alluded to,
05:14 that this issue is very much linked in voters' minds and in legislators' minds to abortion.
05:20 And as part of a culture that some Republican lawmakers have really tried to attack of not
05:29 treating sort of human life as a sacred thing in the kind of process around conception.
05:35 And so I do think in a sense, this was intended for a political purpose, which was to make
05:42 create a reminder for voters of how important it is to elect lawmakers who support reproductive
05:49 health access.
05:50 And just to make sure that this really is sticking and that they know where legislators
05:55 stand on this issue.
05:56 So I do think there in that sense, this is one of those issues that's, you know, part
06:01 of very much with the November election in mind to kind of try to put issues forward
06:08 that voters will care about.
06:11 Now this vote today failed 51 to 39.
06:14 It did not clear the filibuster, but Chuck Schumer changed his vote to a no, I think
06:18 so he could bring the bill forward again.
06:21 So what's next for the Right to Contraception Act?
06:24 Yeah, we're definitely going to see this issue surfacing again closer to November.
06:30 And I think that that, as you indicated, you know, seeing that the majority leader Schumer
06:34 is reversing and wanting to push this issue out further is a decision about when this
06:40 is going to really capture maximal attention.
06:43 It's very clear that, you know, the issue in since the Dobbs decision in June of 2022,
06:49 we've had two years of many, many successes for Democratic candidates and on in election
06:55 cycles in those two years where the issues around public popular support for reproductive
07:02 health access and greater liberalization in this area is something that voters support
07:08 so that clearly the Democratic leadership wants to, you know, time this issue right
07:14 to get attention to it and make this an issue that drives things.
07:17 So I think we're going to see this issue come up sometime in the next in the next.
07:22 How long do we have?
07:23 Five months.
07:24 So a little bit under.
07:25 So it's going to be I promise you, this will be in front of the Senate again within within
07:30 the before the summer's over.
07:32 I would think that the Republican side might want a victory here.
07:38 Right.
07:39 Something that protects the right to birth control that they could then tout in the November
07:43 elections, but that doesn't necessarily seem to be what we saw here with the vote today.
07:48 Why do you think?
07:50 I think look, I think the Republican Party has to navigate between a small part of the
07:57 electorate, a minority who are, you know, in the strongly pro-life camp for whom, you
08:03 know, contraception is not a is an unpopular issue and where these forms of contraception
08:10 that can actually be used in the immediate aftermath to prevent a pregnancy for I think
08:16 for several days after are really actually objectionable, you know, to to in the pro-life
08:22 community.
08:23 So, you know, meanwhile, on the other side, Republican candidates want to be able to run
08:27 in the mainstream and attract the majority of voters and really portray these issues
08:31 as being peripheral.
08:33 So, you know, Republicans are caught a little bit on this issue.
08:37 And and one of the big questions certainly is going to be whether who succeeds in either
08:42 making this peripheral issue, which is the Republican goal, or making this a centerpiece
08:46 issue that voters actually, you know, make decisions on, which is the Democrats goal.
08:52 So we've got really like this push and pull that is that makes Republicans not want to
08:58 have this be a sort of centerpiece issue and want voters to sort of, you know, put it to
09:04 the side and vote on other issues, whether it's immigration, whether it's the economy,
09:09 anything but this because it's divisive for them.
09:12 Now, meanwhile, over in the House, it looks like there was some rumblings from House members
09:18 to put a vote to a similar bill in the House.
09:21 Have you been following that at all?
09:23 Yeah, I haven't I haven't seen the exact language in the House bill, but I just following it
09:28 loosely.
09:29 So what's your prediction?
09:31 Will we have legislation that protects the right to birth control in the U.S. by the
09:35 end of the year or by the election?
09:39 I believe that there will be legislation on this issue that will pass.
09:43 I think obviously we have a narrow Republican majority in the House that is so we're going
09:49 to need some some moderate Republicans to pull away.
09:53 But I do believe that given that the issues reproductive health issues have been really
09:59 decisive in a handful of of the elections that we've had in the last two years, I think
10:05 we will see some Republicans willing to get behind.
10:09 And we're not going to obviously get full Republican support for these bills, but I
10:13 believe Democrats will that this is a winning issue for them and that they will get support
10:18 to pass this legislation sometime sometime between now and in the fall.
10:25 We've covered a lot of ground.
10:26 Is there anything else you're watching here when it comes to reproductive health access
10:30 in America and what our politicians are doing about it?
10:35 I think look, I think this is a reminder, you know, that this issue is not just one
10:41 of that, of about abortion, that it covers a broader range of of topics that that the
10:47 issue of IVF and access to fertility treatments, access to contraception is a part of a whole
10:54 broader set of issues, including some very serious ones like access to prenatal care.
11:00 When you know, when when women potentially have a miscarriage, can they get adequate
11:03 care?
11:04 There are some real issues here.
11:06 There are also some polarizing issues here.
11:09 And it's this is just yet another sign that the repeal of Roe v. Wade has opened the door
11:14 to a sort of a tug of war, if you will, that's going to keep playing out.
11:21 And and voters are going to have to make decisions about, you know, how important this issue
11:25 is to them.
11:27 And the parties are going to definitely be paying a lot of attention to that issue.
11:32 You mentioned women experiencing a miscarriage and their ability to access care.
11:37 We've heard from sources saying that some women are crossing state lines to receive
11:41 their care if they live in a state that is that has reduced reproductive health care
11:46 access, that if they're if the next door state is more favorable in terms of the laws, they're
11:52 willing to travel to have their miscarriage treated in that vein.
11:56 I'm wondering, are you seeing in your practice or just as you observe the landscape, women
12:02 who are being punished for getting treated for a miscarriage, having an abortion or even
12:08 doctors who perform abortion services?
12:11 We you know, we have not seen a lot of aggressive enforcement action against women for for traveling
12:19 for abortion or or against doctors.
12:22 There's been a lot of of of aggressive language.
12:26 And we have seen sort of when cases hit the media, we've seen some response.
12:30 I certainly don't think that any state is aggressively prosecuting women for seeking
12:36 treatment for miscarriage.
12:37 What's happening is something different, which is that doctors and hospitals are now nervous
12:42 about whether they might be violating these fetal heartbeat laws.
12:46 So we've created a lot of anxiety for health care providers that's resulting in women not
12:51 getting access to care and making the decision to travel to another state, which is a solution
12:56 for women who have money, by the way, but not for all all women.
13:00 This is really an issue that is very harmful to, you know, particularly in all lower socioeconomic
13:07 ranges where people don't have those same luxuries and privilege to let go travel and
13:12 take care of things.
13:13 So what's happening is not, I would say, is not yet a kind of an aggressive, punitive
13:19 approach to doctors, except in an isolated set of cases.
13:23 But enough language and enough talking and threatening happening by various state officials
13:30 in some of these restrictive states that they have scared hospitals, scared doctors and
13:35 and scared patients and motivated them to travel, which is really not good for our health
13:39 care system and the future of of medicine and health care in America.
13:47 It really is not.
13:48 Harry Nelson, thank you so much for joining us today.
13:50 We really appreciate your insight on the issue.
13:53 Thanks for having me.
13:54 My pleasure.
13:54 Thank you.
13:54 Thank you.