Birth Control and the Law Basics
"Birth control" is a term that describes any method used to prevent a woman from getting pregnant. Beginning in the 1800s, laws in the United States prohibited birth control, when temperance and anti-vice groups advocated outlawing contraceptives and information about them.
These groups considered such information to be obscene, a belief that was popular enough that in 1873, Congress passed the Comstock Act outlawing the dissemination of birth control devices or information through the mail. Most states followed suit by passing their own laws outlawing the advertising, sale, and distribution, of contraception.
The following is an overview of access to birth control and the law, including explanations of some of the most important court cases shaping these laws and policies.
Women's Rights: Margaret Sanger and Beyond
The turn of the century brought increasing attention to issues involving women's rights. Margaret Sanger, a strong advocate of birth control, opened the country's first clinic in New York City in 1916 and was prosecuted for violating New York's version of the Comstock Act. She served a 30-day sentence in a workhouse but later established the National Committee for Federal Legislation for Birth Control.
Sanger proposed a federal bill that outlined the health and death risks to women who underwent illegal abortions or who completed unwanted pregnancies. The bill sought to reverse the federal position prohibiting birth control, but under pressure from religious groups such as the Catholic Church, Congress did not pass Sanger's bill.
Sanger then sought to challenge the Comstock Act by sending contraception through the mail to a doctor. Her actions were prosecuted, but she achieved her goal when a federal district court deemed that the Comstock Act did not prohibit the mailing of contraceptives when such an act could save a life or promote the health of a doctor's patients. Sanger continued to lead a growing national movement advocating more information and access to birth control, and in 1921 she founded the American Birth Control League.
Formation of Planned Parenthood
In 1942, the American Birth Control League became the Planned Parenthood Federation of America, still in existence today. Planned Parenthood advocates for a range of safe, legal, and accessible contraceptive options. The organization also has been targeted by anti-abortion advocates, although abortions represent a small percentage of their services.
In the 1950s, Sanger and Planned Parenthood supported the research efforts of Dr. Gregory Pincus, which led to the development of the birth control pill. The birth control pill revolutionized family planning, and by the 1960s popular opinion was shifting in favor of making contraception and information about contraception readily available.
Griswold v. Connecticut and the "Zone of Privacy"
By the 1950s and 1960s, most states had legalized birth control, but many state laws still prohibited the dissemination of information about contraception, and some states still prohibited the possession of contraception.
A 1965 landmark U.S. Supreme Court decision further eroded these laws sanctioning birth control. In Griswold v. Connecticut, the Court addressed the prosecution of a Planned Parenthood executive director charged with violating a Connecticut state law that prohibited the distribution and possession of contraceptives or any information about them. The Court found that although the U.S. Constitution does not explicitly offer a right to privacy, that right can be inferred from the language in various sections of the Bill of Rights.
The Constitution therefore does contain what the Court called a "zone of privacy." Connecticut's statute violated that zone of privacy in the realm of marriage because it permitted police officers to search the bedroom of a married couple for evidence of contraception. The Court deemed this action to be overly intrusive and an unconstitutional violation of the right to marital privacy, and it threw out the Connecticut law insofar as it applied to married couples.
Birth Control Law and Presidential Action
In 1966, the federal government -- with an endorsement by U.S. President Lyndon B. Johnson -- began public funding of contraception services for low-income families. President Richard M. Nixon in 1970 signed into law an act promoting research of population and family planning issues. Finally, in 1971, Congress repealed the key elements of the Comstock Act.
Some states kept birth control laws despite the repeal of the federal Comstock Act. In 1972, the Supreme Court found unconstitutional a Massachusetts law that only permitted married couples to receive contraception. The Court held that this law violated the equal protection rights of single persons.
In 1977, the Court addressed a New York state law that permitted only physicians to distribute contraceptives to minors under the age of sixteen, and only physicians or pharmacists to distribute contraceptives to adults. The Court struck down this law as well. It became clear that the Supreme Court viewed as constitutionally protected the right of an individual -- married or unmarried -- to make personal decisions regarding whether to have children.
Access to Birth Control and Employer-Sponsored Insurance
When the Affordable Care Act was signed into law in 2010, it contained a provision requiring coverage of certain base level of services, medications, and procedures by health insurance companies. But employers objected to covering contraceptives in their employees' health control plans on the grounds that it violates their religious beliefs.
A case by the craft supply company Hobby Lobby made its way to the Supreme Court and was decided in 2014. The Court held that Hobby Lobby (and thus other employers) with "deeply held religious beliefs" could opt out of contraception coverage for any health insurance offered to employees, citing the Religious Freedom Restoration Act of 1993 (RFRA).
Questions about Birth Control and the Law? Get Help From an Attorney
If you live in a state that has controversial birth control laws on the books, you'll likely want to get legal advice. It's important to understand your rights under the law, especially if you're concerned about family planning. Start the process today by speaking with an experienced family law attorney in your area.