The Moral Crusade Against Contraception Won't Work

“Did you ever imagine,” a cable TV host recently asked a guest, “that we’d be talking about contraception in the year 2012?” The guest shook her head sadly, adding that she had no memory of when contraception had last been a debatable issue in America.

For many American women, obtaining effective, safe, and reasonably-priced contraception is a primary medical concern. Thus, the recently expressed objections of the Catholic Church and a few other employers to offer insurance coverage for birth control has understandably angered a wide range of women--including Catholic women. Moreover, the relish with which Republican politicians have invoked the religious clauses of the First Amendment to defend the putative constitutional rights of employers to withhold such coverage has further inflamed the debate.

To be clear, no responsible contemporary voices are seeking to ban contraception or take women’s movement back to the 1950s. Nevertheless, there is a distressing theme in the positions on contraception expressed by conservative political figures like Rick Santorum and right-wing talk show personalities like Rush Limbaugh. For them, many women who practice birth control--particularly unmarried women--lack proper restraint, and the government should not enable such “irresponsible behavior” pursuant to the Affordable Care Act of 2010.

It was not so long ago that the very blue state of Connecticut banned contraception. The long struggle leading to the achievement of the right to practice birth control in Connecticut, I believe, offers instructive perspectives on the current debate over contraception.

Like many states in the late nineteenth century, Connecticut came under the sway of Anthony Comstock’s quest for moral purity and passed a statute banning birth control within its boundaries. This 1879 Connecticut law also made it illegal for persons to “assist, abet or counsel” someone to use birth control. Even as other states bowed to public pressure and repealed anti-contraception legislation, the Connecticut statute remained on the books decade after decade.

The first bill to repeal Connecticut’s anti-contraception law was introduced in the state’s legislature in 1917. It went down to a quick and decisive defeat. Between 1923 and 1963, twenty-nine other bills to repeal or modify the old law were introduced. All failed.

The Catholic Church’s strong stand against birth control was the key determinant in persuading two generations of legislators to hold the line against contraception. Auxiliary Bishop John G. Murray of Hartford, for example, intoned in 1923 that contraception is “a violation of natural law” and that “the Creator gave the sex function for just one purpose and to exercise it for any other purpose is a perversion of that function.”

The 1879 Connecticut anti-contraception law did not pose an obstacle for middle-class or wealthy women seeking contraceptives. They had private physicians to assist them in obtaining birth control for “health reasons.” Poor women, by contrast, had to resort abstinence or condoms or accept automobile rides from Planned Parenthood activists to states that permitted physicians to prescribe birth control.

Between 1879 and the 1960s, Connecticut couples were seldom, if ever, prosecuted for using prophylactics. The police did not snoop for contraceptives in private residences or hotels. Moreover, the anti-contraception law did not ban the sale and use of condoms if employed “to prevent the spread of disease.” This appeared to be a double standard: contraceptives were acceptable to promote public health but not family planning.

Between the late 1930s and the early 1960s, three legal challenges were mounted to test the constitutionality of the anti-contraception statute. In 1940, the Connecticut Supreme Court held that the law was “a legitimate exercise of the state’s police power to preserve and protect public morals.” And in 1943 and then in 1961, the U.S. Supreme Court refused on procedural grounds to grant certiorari to physicians and other Connecticut residents seeking to strike down the old law.

A timely side story: Earlier this month, Louise G. Trubek, one of the litigants in the 1961 test cases, published a powerful op-ed piece in the New York Times. Trubek attested that she was no radical in her twenties. She had only wanted to have a family and a career and to “be free to choose the timing of my children’s births so I could do both.”

The court case that finally struck down the 1879 law and made birth control legal in the Nutmeg State was Griswold v. Connecticut (1965). Griswold quickly became a landmark in American constitutional law.

Estelle Griswold, a former singer and medical technologist, was the director of the Planned Parenthood League of Connecticut. In 1961, Griswold and Lee Buxton, a Yale University physician, opened a birth control clinic in New Haven to serve the needs of poor women. They informed law enforcement of what they had done, and then they cooperated in a “friendly bust.”

The Griswold case wound its way through the Connecticut courts and eventually reached the U.S. Supreme Court. The majority Supreme Court opinion, written by Justice William O. Douglas, not only struck down the now almost 90-year old anti-contraception statute, but it also established privacy as a constitutionally-protected right.

In his controversial formulation, Douglas ruled that the right of privacy bars the government from invading the sanctity of the marital bedroom. Privacy, Douglas submitted, should be afforded constitutional status because it falls within the “penumbra” of specific liberties named in the First, Third, Fourth, Fifth, and Ninth Amendments to the U.S. Constitution.

Initially, Douglas’s loose constitutionalism did not find favor with many judges and legal scholars. Since 1965, however, the legal community and the American public have come to embrace privacy as an “unarticulated right” guaranteed by the due process clause of the Fourteenth Amendment.

The ruling in Griswold only afforded constitutional privacy protections to married couples. But the Supreme Court extended the constitutional right of privacy to unmarried heterosexual couples in 1972 (Eisenstadt v. Baird), to a woman’s right to seek an abortion in 1973 (Roe v. Wade), to the right of same-sex couples to be spared prosecution for sodomy in 2003 (Lawrence v. Texas), and, finally, in a number of twenty-first century state cases, to the right of same-sex couples to marry.

What perspectives on the current debate over contraception are furnished by the 1960s battle over birth control in Connecticut? I see three.

One) The history of the effort to limit contraception in Connecticut disproportionately impacted poor women, namely those who could not afford to obtain birth control prescriptions from private physicians. Today, it is likewise the lowest paid female workers who will suffer unduly if employers prevail in limiting insurance coverage for contraception.

Two) The strongest institutional resistance to legalizing contraception in pre-1965 Connecticut came from the Catholic Church. Today, in a similar vein, the Catholic Church resists cooperating with insurance companies to provide health coverage for employees engaged in jobs with essentially secular functions.

Three) The intransigence of religious authorities and politicians in Connecticut prior to Griswold unwittingly launched the constitutional right of privacy. In succeeding years, this newly-articulated right sparked a social revolution in American reproductive health and same-sex relations--no doubt much to the chagrin of those who had tried to hold the line against contraception prior to 1965. Similarly, this winter’s spate of conservative objections to contraceptive insurance coverage has angered many Americans--particularly women. In other words, this year’s debate over contraception has witnessed the Republican Party landing some telling self-inflicted blows to its political fortunes in an election year. We shall see whether those wounds will fester until November.