Developments in Birth Control Law
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. What was once illegal, the use of contraceptives to prevent pregnancy now allowed couples to freely practice "safe sex" and control their decision whether to have children.
Since 1965, the Court has made clear that no person - whether married or single - may be prevented from using contraceptives, or otherwise burdened with state interference on the decision whether to have children. Even so, legal birth control methods have evolved from the simple male condom to the more advanced (and controversial) "morning-after" pill.
Below is a summary of the developments in birth control law since Griswold was decided.
Birth Control Laws and the 'Morning-After Pill'
Emergency contraception (EC) pills, also known as "the morning-after pill", became available in 1996 after the first over-the-counter pill that prevented pregnancy up to five days after sexual intercourse was approved by the Food and Drug Administration. The first EC pill was sold as "Plan B" (also known as the "morning-after pill") and approved as an over-the-counter emergency contraception for women over 18 years (women 17 and younger needed a doctor's prescription until a 2009 court order removed this restriction.)
Several states currently have emergency contraception laws on the books, and cover three main areas of legislative action:
- Laws generally allowing emergency contraception
- Laws requiring hospitals or health care facilities to provide information about and/or initiate emergency contraception therapy to women who have been sexually assaulted
- Laws allowing pharmacists to initiate emergency contraception drug therapy if they are working with a physician, and/or after they have completed a training program in emergency contraception.
Birth Control and Parental Consent
Parent consent laws require federally funded clinics to notify parents if a minor wishes to obtain prescription contraception. The laws vary among the states concerning who may get contraceptive prescriptions and counseling from a health care professional and under what circumstances.
According to the Guttmacher Institute, twenty-one states permit minors to obtain contraceptives services without parental consent. Twenty-five states permit non-parental consent under certain circumstances, such as 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 on the books but these states typically allow physicians to decide whether or not to allow birth control to minors without parental consent.
While supporters of parental consent laws (usually parents of teens) argue that parents have the right to know about any significant sexual activity of their under-age teens, critics generally argue that the laws may actually increase sexual behavior among teens by requiring them to notify their parents of impending sexual activity.
Birth Control and Health Insurance
The refusal of health insurers to cover prescription birth control for women in their drug plans is hotly debated. The Affordable Care Act of 2010 mandated health insurance coverage for contraceptive methods for women, but allowed churches, associations of churches and religiously affiliated schools and charities to refuse such coverage.
This right of refusal was expanded in 2014 when the U.S. Supreme Court in Burwell v. Hobby Lobby ruled that the government cannot compel a closely held corporation to provide health insurance coverage for contraceptives if they object to that coverage based on religious objections. Then in 2017, the Trump administration extended the Hobby Lobby decision and made it easier for any employer to exclude contraceptive coverage from health plans offered to employees based on religious or moral objections.
However, even though there is an ongoing controversy regarding the coverage of contraceptives under health insurance plans, both federal and states laws still require most employers to include coverage in their health plans. What contraceptive methods - such as oral contraceptives, diaphragms, sterilization, IUDs, and Norplant -- are covered is determined by state law and under a private employee's health insurance plan.
Questions about Developments in Birth Control 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.
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