Birth Control Laws in the US

Vintage postcard. Originally captioned “And still the villain pursues her!”

A divided eight member Supreme Court is hearing oral arguments this week in the case of Zubik v Burwell. Zubik et al argue that insurance provided by employer is morally dictated by employer, that religious orgs have religious freedom from providing healthcare they find “immoral”. Obama administration already offered an avenue for such orgs to opt out of providing birth control, by filling out a form. Apparently paperwork is also immoral or a religious violation, because that’s what they’re suing to avoid now. Having to fill out a form affirming that they refuse to provide birth control as part of employee health coverage. Burwell, Secretary of Health and Human Services, is arguing that the other side is being ridiculous and bratty.

In the earliest days of America, birth control was legal and widely used, though not nearly as effective as today’s methods. Withdrawal, “rhythm method” or early fertility tracking, douching with caustic and harmful chemicals like Lysol, and barrier methods such as condoms and contraceptive sponges were all methods available at the time. Then as now, the “right” women had access to birth control – married white women of middle or upper class, particularly in the city. Then as now, birth control access was extremely dicey for all the rest.

In 1873, the federal Comstock Act forbid the mailing of information about birth control or abortion. Several state laws forbidding any sort of distribution of contraceptive knowledge followed, some of which even banned the use of contraception. Still, barriers like condoms remained on drug store shelves and doctors of the wealthy could privately counsel their patients on family planning with little risk. These laws dominated for generations.

During a visit to a Dutch birth control clinic, American social activist Margaret Sanger learned about the diaphragm, a far more effective barrier method of contraception than the douches and sponges available in the United States. Sanger and others began illegally importing diaphragms and in 1916 she opened the doors to America’s first birth control clinic, in Brooklyn, New York. In 1946 after more than thirty years in contraceptives activism, Sanger helped found the International Committee on Planned Parenthood.

Margaret Sanger also introduced Katharine McCormick, an American philanthropist, biologist, and suffragist, to research scientist Gregory Pincus in 1953. Pincus had started work on a hormonal birth control pill in 1951 but his research funding was cut because it had not produced a profit. McCormick personally funded his research in annual grants for the remainder of her life, contributing over $2 million (now $23 million) to the cause. Pincus succeeded and the birth control pill was approved by the Food and Drug Administration in 1960, changing the nation forever.

In the 1960s, about a quarter of US states banned the use of birth control for unmarried women. That’s when the Supreme Court heard the 1965 case of Griswold v. Connecticut and ruled that it was unconstitutional for states to bar married couples from contraception. Birth control did not become the legal right of all adults until the 1972 privacy law case, Eisenstadt v. Baird. Abortion in the first trimester became a (theoretically) protected right in 1973, as a result of Roe v. Wade. Continual efforts to chip away at these rights have existed from the moment the rulings were heard.

The first birth control pill was followed by future versions, along with other hormonal forms of contraception including intrauterine devices, injections, transdermal patches, and better versions of existing barrier methods like condoms and diaphragms. Today Americans use a range of contraceptive products to meet their varied needs. The Affordable Care Act mandates that employer provided health insurance plans include birth control coverage. Religious organizations, from schools and churches to Catholic-owned home healthcare services, are arguing that including this coverage is a violation of their rights under the Religious Freedom Restoration Act of 1993.

The federal government has already offered a compromise whereby religious organizations can file a form stating their wish not to pay for birth control coverage, and for the burden of that cost to be transferred to insurance companies and the government. This is not about religious freedom under any sensible definition. They are not being forced to buy birth control. Their employees earned healthcare coverage as part of their compensation for work. The government is letting them opt-out if they want to. Exceptional consideration to their sensibilities is already being displayed. Yet they are petulant.

Because it’s not about religious freedom, it’s about sexual and reproductive freedom. It’s about limiting the potential of half the world by making them subject to biological processes the other half are exempt from. It’s about controlling women through their bodies, making marriage and monogamy and homemaking requirements rather than options. It’s about taking away the right to plan parenthood.

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