Contraception

Contraception The Supreme Court's involvement in defining the constitutional right to obtain and use contraceptives has been limited until the relatively recent past. In 1927, however, the Court upheld the constitutionality of one contraceptive practice. Buck v. Bell (1927) involved the forced eugenic sterilization of a woman in a state mental institution who was considered to be genetically “unfit.” Justice Oliver Wendell Holmes, writing for the Court, found that none of her rights were violated and that sterilization was “better for all the world” (p. 207) than childbearing by persons with poor genes. In Skinner v. Oklahoma (1942), the Court limited the permissible scope of forced sterilizations, overturning an Oklahoma law providing for compulsory sterilization as a punishment for repeat offenders of certain crimes. The Court held that the right to procreate was a fundamental liberty protected by the Constitution. Skinner was decided on equal protection grounds and did not reverse Buck v. Bell. Although at odds with present privacy jurisprudence, Buck has never been overruled.

Legal restriction on the sale and use of birth control dates back to Congress's passage in 1873 of the Comstock Act, which made sending contraceptives or information about them through the mails or in interstate commerce a crime. Many states passed their own statutes restricting the sale or use of birth control. During the first half of the twentieth century, the lower federal courts and some state courts narrowly construed bans on birth control so that by the 1940s, in most jurisdictions, prescription of contraceptives by medical professionals was legal. In the states of Connecticut and Massachusetts, however, birth control bans continued. These statutes kept birth control clinics closed for years, interfering with access to effective birth control methods by low‐income women.

The Supreme Court had opportunities to review the constitutionality of birth control bans on a number of occasions but dismissed cases on standing grounds, Tileston v. Ullman (1943), or for want of a substantial federal question, Gardner v. Massachusetts (1938). In Poe v. Ullman (1961), the Court denied review of a declaratory judgment action challenging the Connecticut law because it believed that the statute was not being enforced.

After Planned Parenthood of Connecticut opened a birth control clinic, the clinic's executive director and medical director were arrested for violating the state law. Their conviction was appealed to the U.S. Supreme Court in Griswold v. Connecticut (1965). The Court struck down the law, finding that married persons have a constitutionally protected privacy right to use contraceptives. This right of marital privacy was “older than the Bill of Rights” (p. 486). Although not explicitly mentioned in the Constitution, it was implicitly protected, for it lay “within the zone of privacy created by several fundamental constitutional guarantees” (p. 485).

Griswold's holding centered on privacy in marital relations. The right to privacy in the use of birth control was extended to unmarried persons in Eisenstadt v. Baird (1972). Justice William J. Brennan wrote that “[i]f 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” (p. 453). This right was extended to minors when, in 1977, a plurality struck down a ban on distribution of contraceptives to persons under the age of sixteen because minors, as well as adults, had privacy rights (Carey v. Population Services International, 1977).

Also in Carey, the Court overturned a New York law permitting only pharmacists to distribute nonprescription contraceptives because the statute burdened the fundamental right to decide whether to bear a child, without serving any compelling state interests. It struck down the statute's total ban on advertising contraceptives on the ground that it suppressed commercial speech in violation of the First Amendment. The Court expanded First Amendment protection of the advertising of contraceptives when it struck down a federal ban on mailing unsolicited advertisements for contraceptives: Bolger v. Youngs Drug Product Corp. (1983).

The right to privacy developed in the birth control cases served as the basis for the Court's ruling that women have a privacy right to obtain an abortion in Roe v. Wade (1973). Although the Court has recently retreated somewhat in its protection of abortion rights (e.g., Webster v. Reproductive Health Services, 1989), the right to obtain and use contraceptives remains firmly, and broadly, protected.

See also Due Process, Substantive; Family and Children; Gender; Privacy.

Bibliography

C. Thomas Dienes , Law, Politics, and Birth Control (1972).

Mary L. Dudziak