Right to birth control

Description: The right to use a method or object that aids in regulating or preventing the birth of children

Relevant amendments: Fifth, Ninth, Fourteenth

Significance: Based on definitions of individual liberties and the right to privacy, the American justice system has been involved in changing notions of the permissibility of individual citizens’ use of birth control

Throughout American history, midwives and health professionals have always recorded ways in which couples could restrict or prevent pregnancies. In the nineteenth century, however, increasingly stringent moral standards and emphasis on women’s domesticity led reformers to identify the prevention of pregnancy as a moral evil. Such moral views were made a legal formality in 1873, when Anthony Comstock pressed for legislation that made illegal the possession, sale, or gift of any obscene materials or articles for the prevention of conception (Comstock Act). Comstock was made an assistant postal inspector, which gave him expanded power to investigate and prosecute the dissemination of literature dealing with planned parenthood through the mail. In the 1870’s and 1880’s, several states passed similar laws, making the use of contraceptives and the spread of information about pregnancy prevention punishable under obscenity statutes.

The Birth Control Movement

Some reformers, however, viewed this legislation as damaging to the development of American families. Pointing to large immigrant families and to mothers who were always in ill health, they suggested that the spread of information about contraception would help to prevent unchecked growth of American cities. One reformer in particular, Margaret Sanger, was joined by Protestants, social reformers, Malthusian scholars, and others who believed that American cities suffered from unchecked population growth. Sanger chose to confront the Comstock Act. She founded planned parenthood clinics, and she reproduced contraception information to send to women by mail.

Although doctors could prescribe contraceptives for health reasons (to prevent the spread of disease, broadly defined), Sanger and several other reformers, including her sister, were arrested and jailed under the terms of the Comstock Act. In spite of numerous penalties and court appearances, Sanger continually agitated for changes in the laws to permit the use of contraception by married couples. Eventually, activists in the state of Connecticut made a direct challenge to the legal validity of such statutes.

In 1935, the Birth Control League of Connecticut began to operate clinics for married women who could not afford doctors. Because this action violated Connecticut’s obscenity statutes, the directors of the clinic were arrested and found guilty, and the clinics were closed. In the 1960s, however, Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, opened another Planned Parenthood center for married women in the state. In Griswold v. Connecticut (1965), what was at issue were fundamental principles of individual freedoms and rights to privacy within the home. Griswold and her coworker both maintained that they had the right to practice their occupations and that the state’s effort to limit their right to property was arbitrary. Even more important, attorneys maintained that obscenity statutes such as those in Connecticut were a violation of due process, since they unfairly invaded the privacy of the home and the private decisions of couples regarding their sexual practices and family planning. The Supreme Court, in a 7-2 ruling, agreed that laws passed under the terms of the Comstock Act were unfair invasions of privacy.

Privacy and Birth Control After Griswold

Griswold v. Connecticut was one of several decisions that have dealt with the question of rights to privacy. In Mapp v. Ohio (1961; the right to privacy within one’s home), Bowers v. Hardwick (1986; permissibility of consensual sodomy), and Roe v. Wade (1973; the right of a woman to obtain an abortion), courts have had to address the extent to which the American judicial system protects individual liberties and citizens’ rights to privacy.

After the Griswold case, contraception became widely available to individuals, through both private purchases and public programs. Later, the spread of venereal diseases and acquired immune deficiency syndrome (AIDS) added to public acceptance of the use of contraceptives. Nevertheless, public funding for the dissemination of information about contraception and of condoms and other preventive devices came under increasing criticism. Some groups have organized protests against the use of public monies for private relations. In particular, Roman Catholics and religious fundamentalists protest the spread of information and contraceptives on moral and religious grounds. Some cities have engaged in debates regarding whether the desire to protect public health outweighs the need to respect the religious and moral convictions of those opposed to the use of condoms and of family planning in general.

As federal heath care regulations have been expanded, debates arose about whether or not employers that provide health care are required to provide birth control coverage. In 2014 this debate went before the Supreme Court in Burwell v. Hobby Lobby, in which the Court determined that the company, whose owners are Christian and opposed to providing birth control coverage, were within their rights to deny their employees birth control coverage on the grounds of religious freedom. Many feminists and other activists for women's rights saw this ruling as a major setback for American women's rights to birth control.

Bibliography

A good survey of the birth control movement which places birth control activism in historical perspective is Linda Gordon’s Woman’s Body, Woman’s Right: A Social History of Birth Control in America (New York: Penguin Books, 1977). On Margaret Sanger, see Margaret Sanger, My Fight for Birth Control (New York: Maxwell Reprint, 1969); Vivian L. Werner, Margaret Sanger: Woman Rebel (New York: Hawthorn Books, 1970); Gloria Moore and Ronald Moore, Margaret Sanger and the Birth Control Movement: A Bibliography, 1911-1984 (Metuchen, N.J.: Scarecrow Press, 1986); and David M. Kennedy, Birth Control in America: The Career of Margaret Sanger (New Haven, Conn.: Yale University Press, 1970). On birth control history and contemporary issues, see "The Long, Strange History of Birth Control" by Megan Gibson on Time magazine's website and the "Committee Opinion" by the Committee on Health Care for Underserved Women in the American Congress of Obstetricians and Gynecologists on the status of birth control access in the United States in 2015..