Birth Control Law History and Developments

Family planning involves decisions made by people concerning their reproductive lives. Perhaps, most importantly, this decision involves if and when people will have children. People must decide whether to engage in sexual activity that could lead to pregnancy. They also might need to consider whether to use contraception or terminate a pregnancy.

Birth control and abortion aren't new, but early family planning methods weren't always safe or effective. For example, Chinese women drank lead and mercury centuries ago to reduce fertility. Sometimes doing so led to sterility or even death.

Individuals faced with family planning questions often rely on moral or religious beliefs to reach a decision, which can vary widely in America. As a result, family planning laws are frequently controversial.

Reproductive health, contraception, and associated rights occupy a significant space in the consciousness of the American public. It's important to know about these issues. Continue reading to learn more about birth control throughout the history of America.

Early History of U.S. Birth Control Laws

During the 19th century in the United States, birth rates began to decline. The average white woman in 1800 gave birth seven times. By 1900, that number dropped to an average of 3.5 births in a lifetime. The decline was partly due to increased scientific study of conception, contraception, and birth control.

At the beginning of the 1800s, early-stage abortions generally were legal. It wasn't until the mid-to-late 1800s that states passed laws banning abortion. The use of birth control and abortion, however, declined as growing public opinion considered information about birth control methods to be obscene and abortion to be unsafe. Religious and moral beliefs then, as now, affected reproductive laws.

The First Birth Control Clinic

In 1912, Margaret Sanger started the modern birth control movement by writing a newspaper column about the subject. As a public health nurse, Sanger was concerned about American women affected by frequent childbirth, miscarriages, and unsafe abortions. In 1916, she opened the nation's first birth control clinic in New York City.

Many Factors Shaped Birth Control Laws

Birth control laws have responded to changing national needs and medical science. As the legal landscape changed, multiple court decisions 

In the early 20th century, much of the conversation on reproduction focused on the need for married couples to space children and limit family size. Developments in medical science also assisted in decreasing the number of children per family.

Some scientific and legal developments included:

• In 1928, ovulation timing was established but mistakenly included half of menstruation.
• From 1940 to 1957, family size increased again to 3.7 children.
• In 1960, birth control pills and IUDs became available.
• In 1965, the Supreme Court in Griswold v. Connecticut struck down state laws prohibiting birth control use by married couples.
• In 1970, Congress established federal funding for family planning services.
• In 1972, the U.S. Supreme Court decided Eisenstadt v. Baird. This decision established constitutional protections for unmarried couples in their use of contraceptives. By 1980, these services were a part of Medicaid.

Approval of the Morning-After Pill

Legal birth control methods have evolved from the simple male condom. For example, the more advanced (and controversial) "morning-after" pill is now a common option.

Emergency contraception (EC) pills became available in 1996. The Food and Drug Administration (FDA) approved these pills that year. These pills are also known as "the morning-after pill." They were developed after the first over-the-counter pill for preventing pregnancy.

The first EC pill was sold as "Plan B." It prevented pregnancy if taken up to five days after unprotected sex. It was approved as an over-the-counter emergency contraception for women over 18. Women 17 and younger needed a prescription until a 2009 court order removed this restriction.

Contraception Use Became a Constitutional Right

When the Supreme Court struck down a Connecticut state law that banned the use of contraceptives in Griswold v. Connecticut, it put reproductive rights and birth control laws at the forefront of America's conscience.

At one time, birth control was illegal. But after Griswold, people were constitutionally protected to freely practice "safe sex."

Since 1965, the Court has clarified that no person may be prevented from using contraceptives, regardless of their marital status. The state also cannot interfere in deciding whether to have children. 

State Laws for the Morning-After Pill

Several states now have various emergency contraception laws on the books, including:

• Laws generally allowing emergency contraception
• Laws requiring hospitals or health care facilities to provide information about emergency contraception
• Laws requiring hospitals to initiate such contraception therapy for sexual assault victims
• Laws allowing pharmacists to initiate emergency contraception when working with a physician
• Laws allowing pharmacists to do so after they have completed a training program in emergency contraception

Under Dobbs, “morning after" abortion pills remain legal. But medication abortions are not permitted in many states now under certain circumstances. Such medication abortions are those often involving using mifepristone and misoprostol. While abortion remains legal, abortion services have become more difficult.

Parental Consent To Birth Control

Parent consent laws require federally funded clinics to notify parents. Specifically, they require this if a minor wishes to get prescription contraception. The laws vary among the states about who may get contraceptive prescriptions. They also govern whether a person must undergo counseling from a health care professional.

According to the Guttmacher Institute, 21 states allow minors to get contraceptive services without parental consent. And 25 states permit non-parental consent under certain circumstances. These circumstances include if a physician determines a health hazard is present or if the minor is married.

Finally, a few states have no explicit policy on parental consent laws. But these states typically allow physicians to decide whether to allow birth control to minors. They may decide without parental consent.

Differing Views on Parental Oversight

Supporters of parental consent laws argue that parents have the right to know. They argue that parents should know about any significant sexual activity their underage teens may engage in. But critics generally argue that the laws may increase the risks associated with sexual behavior among teens. 

Birth Control Laws and Health Insurance

The refusal of health insurers to cover prescription birth control for women in their drug plans is hotly debated.

Birth Control Under the Affordable Care Act

The Affordable Care Act of 2010 mandated health insurance coverage for contraceptive methods. But it also allowed churches and associations of churches to refuse such coverage. It allowed the same right to refuse to religiously affiliated schools and charities.

Religious Organizations and Burwell v. Hobby Lobby

This right of refusal was expanded in 2014. In 2014, the U.S. Supreme Court ruled that the government cannot compel a closely held corporation to provide health insurance coverage for contraceptives. In Burwell v. Hobby Lobby, SCOTUS ruled this about such corporations if those corporations object to that coverage. But the grounds for objecting must be based on religious objections, the court said.

In 2017, the Trump administration extended the Hobby Lobby decision. The administration made it easier for employers to exclude contraceptive coverage from employee health plans. It also made this exclusion easier for employers based on religious or moral objections.

Does Employer Health Insurance Cover Birth Control?

Usually, health insurance plans must cover at least some level of birth control medical care. Controversy continues about the coverage of contraceptives under these plans. But both federal and state laws still require most employers to include coverage in their health plans.

What contraceptive methods are covered is determined by state law. It is also determined under a private employee's health insurance plan.

State laws and employers can decide whether to cover any of the following:

• Oral contraceptives
• Diaphragms
• Sterilization
• Intrauterine devices (IUDs)
• Norplant

The Department of Health and Human Services has stood behind the need for employers to cover birth control. It has indicated that employers should cover health care services related to birth control.

Modern Legal Views of Birth Control

These days, abortion and birth control are often at the heart of many legal controversies. These are issues hotly debated in the scope of reproductive health care and reproductive health care services.

In 2022, the U.S. Supreme Court decided in Dobbs v. Jackson Women's Health Organization, which affected abortion rights. But that Supreme Court decision did not affect access to birth control.

Birth control law has changed since Griswold. While cases like Dobbs have affected abortion laws, birth control laws remain nearly the same as before SCOTUS' decision in 2022. It is entirely legal to get birth control pills.

Birth Control Law Is Still Evolving

Access to birth control has taken multiple twists and turns throughout the history of America, remaining controversial and ever-changing.

The Biden administration's stance on abortion and reproductive care can be reviewed in more detail here. In this other statement, the Biden administration has also characterized access to reproductive health care as a fundamental right.

The controversy over birth control and abortion laws will certainly continue. 

More Resources

• Planned Parenthood: This nonprofit organization offers reproductive health services to people. It provides abortion services, as well. The organization may only require payment on a sliding scale. This is for qualifying low-income people.
• American Birth Control League: Planned Parenthood reviews the history of its foundation, which traces to Margaret Sanger's establishment of the American Birth Control League in the 1920s.
• Hyde Amendment: The Hyde Amendment prohibits using federal funds for abortion. But it does not bar the use of federal funds for birth control. As a federally funded form of health insurance, Medicaid cannot be used for abortions. But it can be used for birth control.
• Due Process Rights and Abortion: Read more about the relationship between due process rights and access to reproductive care. This article breaks down the Griswold case in more detail.
• Code of Federal Regulations Title 21: The Food and Drug Administration (FDA) website details the federal code related to the approval of new contraceptive methods.
• Comstock Act: Learn more about this 1873 law, which interfered with people's access to birth control by placing restrictions on the use of the U.S. Postal Service to send birth control methods by mail.
• Title X of the Public Health Service Act: This federal program was established in 1970. It provides birth control and reproductive health care services to low-income people. It is a fund set up by the federal government. Title X funds are used for providing such services to people, regardless of their ability to pay.

The overturning of Roe v. Wade in 2022 limited peoples' rights to abortion access and abortion care. But this Supreme Court decision did not affect most forms of birth control. You can still get birth control across the United States. But if you're facing a legal issue related to getting birth control, it's important to contact an attorney.

Questions About Birth Control Law or Access? An Attorney Can Help

If you live in a state with controversial birth control laws, you'll likely want to get legal advice. Understanding your rights under the law is important, especially if you're concerned about family planning.

Start the process today by speaking with an experienced family law attorney in your area. State laws can affect your rights, whether you're in New York, Missouri, or Mississippi. It's a good idea to speak with an attorney if you are facing a legal issue related to reproductive rights.