Washington — Congressional Democrats are mounting a legislative response this week to a concurring opinion by Justice Clarence Thomas suggesting that Supreme Court decisions involving access to contraception and same-sex marriage should be reconsidered, with lawmakers holding votes on a pair of bills that aim to address concerns that more rights could be rolled back.
The House will convene Tuesday and vote first on a bipartisan bill, the Respect for Marriage Act, that would protect marriage equality by repealing the Defense of Marriage Act (DOMA) and providing federal protections for same-sex and interracial couples. While the Supreme Court struck down sections of DOMA in U.S. v. Windsor and Obergefell v. Hodges, the law still remains on the books.
The lower chamber will also take up later this week the Right to Contraception Act, which if passed would create a statutory right for people to access birth control and protect a range of contraceptive methods, as well as ensure health care providers have a right to provide contraception services to patients.
“House Democrats are not waiting for elections to protect our rights and freedom. We’re fighting NOW to keep abortion and birth control legal and stop corporate price gouging,” House Speaker Nancy Pelosi tweeted Monday. “We won’t let Republicans crush our rights and pad corporate pockets on our watch.”
House Minority Whip Steve Scalise, a Republican from Louisiana, said most Republicans will likely oppose the bill involving contraception, but predicted GOP lawmakers will be split on the same-sex marriage proposal. Both measures are still expected to clear the Democrat-led House and join a pair of bills designed to protect abortion access that passed the House last week and are awaiting action in the Senate. But with Republicans and Democrats each controlling 50 seats in the upper chamber, the path to winning approval in the Senate is a difficult one.
Support from at least 10 Senate Republicans is needed for any bill to advance. While the two measures involving abortion — one would enshrine the right to an abortion into federal law, and the other would ban states from interfering with a woman’s right to travel for the procedure — have little chance of becoming law, it’s unclear whether the bills protecting same-sex marriage and access to contraception will meet the same fate.
One Republican, Sen. Susan Collins of Maine, is a backer of the marriage equality measure, and GOP Sen. Lisa Murkowski of Alaska said she would like to see contraception and same-sex marriage rights protected under federal law. Sen. Dick Durbin, a Democrat from Illinois, told reporters Monday he believed the two bills poised for House action this week would garner the 60 votes needed to overcome a filibuster.
“Notice how quiet the Republicans were when the same-sex marriage issue finally emerged during the Obama administration,” he said Monday. “They get it. They’re on the wrong side of history.”
But Durbin conceded the Senate calendar could complicate the timeline for future action.
“I’d like to see it brought up, and I’d like to vote on it, but I can’t say that it will be scheduled,” he said. “There’s just so many things and so little time.”
Both bills, meanwhile, are supported by the White House, which urged passage by the House.
“The right to marriage confers vital legal protections, dignity, and full participation in our society,” the Office of Management and Budget said in a statement of the marriage equality bill. “No person should face discrimination because of who they are or whom they love, and every married couple in the United States deserves the security of knowing that their marriage will be defended and respected.”
On the Right to Contraception Act, the budget office said, “Access to contraception is essential to ensuring all people have control over personal decisions about their own health, lives, and families. After the overruling of Roe, which rested on the fundamental right to privacy in matters of health, bodily autonomy, and family, it has never been more important to protect and expand access to family planning services.”
The action from the House is Democrats’ answer to the concurring opinion written by Thomas in the Supreme Court’s ruling overturning the constitutional right to an abortion established under Roe v. Wade.
In his opinion, which no other justice joined, Thomas said the Supreme Court should reconsider landmark decisions that recognized rights regarding contraception and same-sex relationships: The 1965 ruling in Griswold v. Connecticut, which said married couples have the right to use contraception without government interference; the 2003 decision in Lawrence v. Texas, which established the right to same-sex intimacy; and Obergefell, the 2015 ruling recognizing the right to same-sex marriage.
“In the future, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence and Obergefell,” Thomas wrote.
But the court’s majority opinion in the abortion dispute, Dobbs v. Jackson Women’s Health Organization, made clear that rights regarding contraception and same-sex relationships were not under threat from the Supreme Court.
“The court emphasizes that this decision concerns the constitutional right to abortion and no other right,” Justice Samuel Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Still, Democratic Reps. Kathy Manning of North Carolina and David Cicilline of Rhode Island, who are behind the birth control access and marriage equality bills respectively, warned that the rights are coming under attack in the wake of the Supreme Court’s decision striking down Roe.
“Let me be clear: We are working to protect women’s right to control their lives. Our opponents are working to take women’s rights away,” Manning told reporters Tuesday. “I look forward to passing this bill to protect women’s rights across this country.”
Jack Turman, Ellis Kim and Zak Hudak contributed to this report.
