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Birth Control

From lawbrain.com

A measure or measures undertaken to prevent conception.

In the 1800s, temperance unions and anti-vice societies headed efforts to prohibit birth control in the United States. Anthony Comstock, the secretary of the Society for the Suppression of Vice, advocated a highly influential law passed by Congress in 1873. It was titled the Act for the Suppression of Trade in, and Circulation of Obscene Literature and Articles of Immoral Use, but known popularly as the Comstock Law or Comstock Act (18 U.S.C.A. § 1416-62 [1964]; 19 U.S.C.A. § 1305 [1964]). The Comstock Act prohibited the use of the mail system to transmit obscene materials or articles addressing or for use in the prevention of conception, including information on birth control methods or birth control devices themselves.

Soon after the federal government passed the Comstock Act, over half of the states passed similar laws. All but two of the rest of the states already had laws banning the sale, distribution, or advertising of contraceptives. Connecticut had a law that prohibited even the use of contraceptives; it was passed with little or no consideration for its enforceability.

Despite popular opposition, birth control had its advocates, including Margaret Sanger. In 1916, Sanger opened in New York City the first birth control clinic in the United States. For doing so, she and her sister Ethel Byrne, who worked with her, were prosecuted under the state's version of the Comstock law (People v. Byrne, 99 Misc. 1, 163 N.Y.S. 682 [1917]; People v. Sanger, 179 A.D. 939, 166 N.Y.S. 1107 [1917]). Both were convicted and sentenced to thirty days in a workhouse.

After serving her sentence, Sanger continued to attack the Comstock Act. She established the National Committee for Federal Legislation for Birth Control, headquartered in Washington, D.C., and proposed the "doctor's bill." This bill advocated change in the government's policy toward birth control, citing the numerous instances in which women had died owing to illegal abortions and unwanted pregnancies. The bill was defeated, due, in part, to opposition from the Catholic Church and other religious groups.

But when the issue of Sanger's sending birth control devices through the mail to a doctor was pressed in United States v. One Package, 13 F. Supp. 334 (S.D.N.Y. 1936), the court ruled that the Comstock Act was not concerned with preventing distribution of items that might save the life or promote the well-being of a doctor's patients. Sanger had sought to challenge the Comstock Act by breaking it and sending contraception in the mail. Her efforts were victorious and the exception was made. The doctor to whom Sanger had sent the device was granted its possession.

Sanger furthered her role in reforming attitudes toward birth control by founding the Planned Parenthood Federation of America in 1942. Planned Parenthood merged previously existing birth control federations and promoted a range of birth control options. In the 1950s, Sanger went on to support the work of Dr. Gregory Pincus, whose research eventually produced the revolutionary birth control pill.

By the 1960s, partly as a result of Sanger's efforts, popular and legal attitudes toward birth control began to change. The case of Griswold v. Connecticut 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), loosened the restrictions of the Comstock Act. When the Planned Parenthood League of Connecticut opened in 1961, its executive director, Estelle Griswold, faced charges of violating Connecticut's ban on the use of contraceptives (Conn. Gen. Stat. Ann. §§ 53-32, 54-196 [1958]).

A divided Supreme Court overturned Griswold's conviction with a ground-breaking opinion that established a constitutional right to marital privacy. The Court threw out the underlying Connecticut statute, which prohibited both using contraception and assisting or counseling others in its use. The majority opinion, authored by Justice William O. Douglas, looked briefly at a series of prior cases in which the Court had found rights not specifically enumerated in the Constitution—for example, the right of freedom of association, which the Court has said is protected by the First Amendment, even though that phrase is not used there (NAACP v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 [1958]). Douglas concluded that various guarantees contained in the Bill of Rights' Amendments One, Three, Four, Five, Nine, along with Amendment Fourteen, create "zones of privacy," which include a right of marital privacy. The Connecticut statute, which could allow police officers to search a marital bedroom for evidence of contraception, was held unconstitutional; the government did not have a right to make such intrusions into the marital relationship.

The other branches of the government followed the Court's lead. President Lyndon B. Johnson endorsed public funding for family planning services in 1966, and the federal government began to subsidize birth control services for low-income families. In 1970 President Richard M. Nixon signed the Family Planning Services and Population Research Act (42 U.S.C.A. § 201 et seq.). This act supported activities related to population research and family planning.

More and more, the Comstock Act came to be seen as part of a former era, until, in 1971, the essential components of it were repealed. But this repeal was not necessarily followed in all the states. In the 1972 case of Eisenstad v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349, the Court struck down a Massachusetts law still on the books that allowed distribution of contraceptives to married couples only. The Court held that the Massachusetts law denied single persons equal protection, in violation of the Fourteenth Amendment.

In the 1977 case of Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675, the Supreme Court continued to expand constitutional protections in the area of birth control. The Court imposed a strict standard of review for a New York law that it labeled "defective." The law had prohibited anyone but physicians from distributing contraceptives to minors under sixteen years of age. The law had also prohibited anyone but licensed pharmacists from distributing contraceptives to persons over sixteen. Carey allowed makers of contraceptives more freedom to distribute and sell their products to teens.

Throughout the 1990s, cases were brought in a number of jurisdictions in which parents sought to prohibit the distribution of condoms and other forms of birth control in schools to unemancipated minor students without the consent of a parent or guardian. Although some jurisdictions held that such birth control distribution programs violated the parents' due process rights, other jurisdictions upheld the privacy rights of such minors and found the programs to be constitutional.

More controversy arose after women gained access to RU-486, the so-called "morning-after" pill and later generations of emergency contraceptives, which are high-dosage birth control pills designed to be taken shortly after unprotected intercourse has taken place. Emergency contraception continues to be opposed by antiabortion groups on the ground that it is another form of abortion.

Since 2000, the election of Republican majorities in various state legislatures has strengthened the position of groups opposing abortion and reproductive rights. In addition to continuing to battle for the right to require parental consent for contraceptive services to minors both in schools and community health clinics, a number of conservative groups support "abstinence-only" sexuality education classes in schools. While some proponents want to make such classes optional and are willing to have them taught alongside traditional courses that discuss various methods of birth control, other adherents seek to have these classes taught in place of the traditional courses.

President George W. Bush's election in 2000 as well as the Republican gains in the House in 2002, further strengthened the efforts of those who seek to restrict access to birth control education and methods.

Further Readings

Bacigal, Ronald J. 1990. The Limits of Litigation—The Dalkon Shield Controversy. Durham, N.C.: Carolina Academic Press.

Hoff-Wilson, Joan. 1991. Gender and Injustice: A Legal History of U.S. Women. New York: New York Univ. Press.

McCann, Carole R. 1994. Birth Control Politics in the United States, 1916–1945. Ithaca: Cornell Univ. Press.

McLaren, Angus. 1990. A History of Contraception from Antiquity to the Present. Cambridge, Mass.: Blackwell.

Planned Parenthood. Available online at <http://www.plannedparenthood.org> (accessed June 1, 2003).

Solinger, Rickie. 2000. Wake Up Little Susie: Single Pregnancy and Race before Roe v. Wade. New York: Routledge.



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