Perspective

History of Medicine

“An Uncommonly Silly Law” — Contraception and Disparities in the United States

Heather M. Prescott, Ph.D.

N Engl J Med 2016; 374:706-708February 25, 2016DOI: 10.1056/NEJMp1508816

Article

Today in the United States, conservative social mores are putting women’s access to safe and affordable contraception at risk. Even in 2016, there is no assurance that birth control will be accessible to all U.S. women regardless of ability to pay. In its 2014 decision in Burwell v. Hobby Lobby Stores, the Supreme Court held that closely held corporations — those in which fewer than five people own more than half of company stock — may choose to exclude contraception coverage from their employees’ health insurance plans created under the Affordable Care Act if the use of contraceptives violates their religious beliefs.

Since that decision, the Court has agreed to hear seven more cases filed by religious organizations claiming that simply having to notify insurance companies and the government of their objections to the contraceptive mandate infringes on their religious liberty. In 2015, a new tactic in long-running attacks on Planned Parenthood, ostensibly targeted at abortion, led to legislative efforts to discontinue all federal funding — which is already prohibited for abortion services — for the organization’s other activities; this move would severely restrict access to contraception and other important health care services for many low-income women.

Such legal threats to women’s reproductive rights and health are far from new. Half a century ago, the U.S. Supreme Court overturned a Connecticut state law that made it a crime to use any drug or instrument to prevent conception or to aid and abet someone else in procuring birth control. In the 1965 decision Griswold v. Connecticut, the Court declared that marriage involved “a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” The Court asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” Even the two dissenters, justices Hugo Black and Potter Stewart, who said there was no constitutional “right of privacy,” nevertheless considered the Connecticut statute “an uncommonly silly law.”1

Even as we watch the recent attacks on access to birth control in the United States, it is difficult to imagine a time when contraceptive use was prohibited entirely. Connecticut’s law was the culmination of a broader movement in the Victorian era to outlaw pornography and other “lewd” materials, which included information about birth control. The federal Comstock Law, named after anti-vice crusader Anthony Comstock (a special agent postal inspector appointed by the Postmaster General), was passed in 1873 and prohibited the circulation of contraceptives and advice literature through the U.S. mail. Various states also banned the sale or distribution of contraceptives, but Connecticut was the only state that criminalized the use of contraceptives altogether. The sole exception was the sale and distribution of condoms, but advertisements indicated that they were meant “for the control of disease only.” Even married couples could be arrested for violating Connecticut’s ban on contraceptive use, and anyone who assisted another person in obtaining birth control could be prosecuted or punished as if he or she were the principal offender.

The federal and state agencies entrusted with enforcing these laws were underfunded, however. Weak enforcement allowed an underground contraceptive trade to flourish. Educated consumers with sufficient income could find various devices, including condoms, douches, and cervical caps, on the black market. Birth-control pioneer Margaret Sanger decried the unfairness of this situation. In 1916, Sanger was arrested for establishing a clinic for low-income women in the Brownsville neighborhood of Brooklyn.2

For decades, Sanger and other birth-control advocates around the country tried unsuccessfully to eliminate all restrictions on contraception. In Connecticut, advocates tried to get the state legislature to legalize contraceptives, but Catholic opponents thwarted their efforts. In the early 1960s, birth-control activists decided that their best option was to proceed with a test case. Charles Lee Buxton, chair of Yale’s obstetrics and gynecology department, and Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, agreed to test the Connecticut law by opening a public clinic in New Haven, with Griswold serving as clinic director. On the second day of its operation, two police detectives raided the clinic. Griswold eagerly told the officers about the clinic’s work and found two patients — Yale graduate students Joan Bates Forsberg and Rosemary Stevens — willing to provide testimony confirming that the clinic was openly violating state law by giving them contraceptives. The Connecticut State Supreme Court found Buxton and Griswold guilty, as did the circuit court of appeals.

Soon thereafter, in an article in Connecticut Medicine, Buxton explained how the Connecticut law discriminated against low-income women. Few, if any, proponents of the law were “zealous enough to suggest the invasion of the physician’s private office,” he noted, so women who could afford a private physician could easily obtain contraceptive services. Yet state law-enforcement agencies had no qualms about raiding and closing clinics that served indigent married women. This uneven enforcement “prevented hospitals, welfare agencies, and other organizations from opening contraceptive clinics for the lower socioeconomic groups who cannot afford a private physician’s fee. These of course,” Buxton observed, were “frequently the very people who desperately need this kind of help.”3

Griswold v. Connecticut reversed the rulings of the lower courts, but the decision was limited in scope. The Court stated that Connecticut law unfairly intruded on the right to marital privacy; it said nothing about the use of contraceptives by unmarried persons. It also did not address other state laws that prohibited the sale and distribution of contraceptives. Nevertheless, shortly after the Griswold decision, William Curran of Boston University’s Law–Medicine Research Institute observed that “physicians in general should be fairly comfortable with this action by the court,” since it seemed to affirm the “code of silence” regarding the doctor–patient relationship that had “been part of medicine for over two thousand years.”

Curran correctly predicted that the Griswold decision would pave the way for resolving other medicolegal issues involving “this newly identified fundamental human right” of privacy.4 In 1972, the Court extended the right of privacy to unmarried persons seeking birth control, stating in their ruling Eisenstadt v. Baird that “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”5 A year later, the right of privacy was extended to cover abortion in Roe v. Wade.

Clearly, moral and religious objections to abortion have persisted. Over the past 25 years, the Court has become more conservative and allowed certain restrictions on abortion access — such as parental consent and waiting periods — as long as they don’t present an “undue burden” on women seeking abortion services. Among the latest tactics in the campaign against reproductive rights was the release of videos in July and August 2015 by an antiabortion group called the Center for Medical Progress purporting to show Planned Parenthood clinic personnel engaged in the illegal sale of fetal tissue and organs. (In January, a grand jury in Harris County, Texas, indicted the producers of the video on a charge of tampering with a governmental record, a felony, and on a misdemeanor charge related to purchasing human organs.) Although investigations by several states have shown no evidence of wrongdoing, Congress has tried several times to eliminate federal funding for the beleaguered organization.

Though this battle centers on abortion, it poses a threat to contraceptive access as well. Planned Parenthood is the single largest provider of contraceptive services for women living at or below the federal poverty level. Eliminating federal funding will put these services in jeopardy and recreate the economic disparity in birth-control access that the plaintiffs in Griswold v. Connecticut sought to alleviate.

Disclosure forms provided by the author are available with the full text of this article at NEJM.org.

From the Department of History, Central Connecticut State University, New Britain.