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Is the Right to Contraception Services Now in Danger?

On June 30 the U.S. Supreme Court handed down its opinion in Burwell v. Hobby Lobby Stores, Inc. In a 5 to 4 decision, the Court held that closely held corporations – those with more than half of their stock owned by fewer than five people – may choose to exclude contraception coverage from their employees' health insurance plans created under the Affordable Care Act if doing so violates their religious beliefs. Hobby Lobby and its co-litigant Conestoga Wood Specialties objected to four types of birth control: Plan B and Ella One, which are emergency contraceptive pills; and two types of intrauterine devices (IUD), the Copper-T IUD and the IUD with progestin. According to the Emergency Contraception website, “Emergency contraceptive pills prevent pregnancy primarily, or perhaps exclusively, by delaying or inhibiting ovulation.” IUDs do not impact ovulation but “can prevent sperm from fertilizing an egg.” They “may also prevent implantation of a fertilized egg.”

The owners of Hobby Lobby and Conestoga Wood Specialties claimed that these methods were no different than abortion and therefore violated the free exercise of their religious beliefs. The majority decision in Burwell, written by Justice Samuel Alito, agreed: "The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients,” Alito wrote. Therefore, requiring these companies to cover these forms of contraception “substantially burden the exercise of religion.”

In my latest book, The Morning After: A History of Emergency Contraception in the United States (Rutgers 2011), I describe how emergency contraceptive pills went from being a little-known birth control method used by a small percentage of health care providers and their patients to a dedicated product available without prescription. The first mention of what was then called postcoital contraception in the popular press was a 1966 article in the New York Times magazine by abortion activist and investigative reporter Lawrence Lader. The article celebrated the revolutionary accomplishments of the three “fathers” of the contraceptive pill and announced a new development that could “herald a second revolution in birth control.” This new “morning-after pill” could prevent conception after ovulation by increasing the speed of the egg through the reproductive tract. In addition to providing a back-up method of birth control, the new pill offered several advantages over existing oral contraceptives. Because it only had to be taken once, within a few days of intercourse, instead of every day, the new pill was less expensive than standard contraceptive pills. Therefore, it could reach many women who were not covered by Medicaid or private health insurance and were unable to afford the cost of the regular course of birth control pills.1

This discovery came closely after the U.S. Supreme Court decision Griswold vs. Connecticut (1965), a case involving an 1879 Connecticut statute that made the dissemination and use of birth control a crime for both physicians and users.The sole exception was the sale and distribution of condoms, but these were advertised as being “for the control of disease only.” Physicians who violated the 1879 law risked loss of licensure and/or prison. Nevertheless some physicians quietly gave contraceptives to their patients.  However, this was only available to women who could afford family physicians. Women who were too poor to pay for medical care, and who could not rely on male partners to use condoms, were left with no reliable birth control options.

During the height of the Great Depression of the 1930s, birth control advocates in the Nutmeg state decided to eliminate these economic disparities and began a concerted effort to overturn the state’s oppressive laws.  In 1935, the Connecticut Birth Control League (CBCL) deliberately flouted the 1879 statute by opening a public birth control clinic in Hartford in 1935. After meeting with no opposition, the League set up clinics in major cities throughout the state, including Norwalk, Danbury, New Britain, New London, and finally Bridgeport, where the city prosecutor officially declared that the 1879 law did not prevent the clinic from providing services. The League’s luck turned when they established a clinic in Waterbury, the city with the highest percentage of Catholics in the state. In its decision on the ensuing criminal case, State of Connecticut v. Roger B. Nelson, et.al (1940), the Connecticut State Supreme Court found the state legislature could “reasonably hold that the artificial limitation of even legitimate child-bearing would be inimical to the public welfare,” and “injurious to public morals.” The CBCL had no choice but to close down their clinics.

Over the next two decades, the League struggled unsuccessfully to get the Connecticut law overturned. After legislative campaigns proved futile, the League decided in the mid-150s that their best option was to proceed with a test case. Charles Lee Buxton, chair of Yale’s obstetrics and gynecology department, agreed to be the lead plaintiff. In Poe v. Ullman and several companion lawsuits, Buxton claimed that the 1879 law infringed upon “property and liberty” as defined in 14th amendment by interfering with his practice of medicine; and by intruding on the liberty of his patients by barring their access to birth control. After the Connecticut Supreme Court upheld the state law, the plaintiffs appealed to the U.S. Supreme Court. In their decision for Poe v. Ullman (1961), the U.S. Supreme Court found that since the 1879 law was rarely enforced, private physicians and their patients faced little risk of prosecution. The Court stated it could not  “be umpire to debates concerning harmless, empty shadows.” In a dissenting opinion, Justice Harlan called the Connecticut statute “obnoxiously intrusive” into the institution of marriage. Dr. Buxton told a reporter that the decision “adds up to the rich getting contraceptives and the poor getting children.”

Shortly after the Poe decision, the Planned Parenthood League of Connecticut decided to test the law once again by opening a public clinic in New Haven. On their second day of operation, two detectives from the New Haven police department investigated the clinic. Clinic director Estelle Griswold eagerly told the officers about the clinic’s work and found two patients -- Yale graduate students Joan Bates Forsberg and Rosemary Stevens -- willing to give testimony confirming that the clinic was openly violating state law by giving them contraceptives. The Connecticut and circuit appeals courts found Griswold and her co-defendants guilty of violating the 1879 statute. This time, the U.S. Supreme Court agreed to hear the criminal case, Griswold v. Connecticut. In a 7-2 ruling handed down in 1965, the Court held that the Connecticut law violated a "right to marital privacy." In the opinion, Justice William Douglas argued that in addition to the expressed guarantees of the Bill of Rights, other rights were contained within the "penumbras," or shadows, existing along the margins of the Bill of Rights. These penumbras were "formed by emanations from those guarantees that help give them life and substance." According to Douglas, the First, Third, Fourth, Fifth, and Ninth Amendments, protected more than the specific rights contained within each of them; they also established "zones of privacy" that the government was equally bound to protect.

The Griswold decision only applied to married couples, however.  The Court stated that Connecticut state law unfairly intruded on the right to marital privacy: it said nothing about those who were unwed. Most states were either silent on the issue of whether single persons had the same privacy rights, or explicitly outlawed prescribing or distributing contraceptives to unmarried individuals. Violation of these birth control laws was considered a felony carrying up to five years in prison. Other states were less restrictive, but very few allowed unmarried persons below the age of twenty-one to obtain birth control without parental consent.

Health care providers were able to get around these restrictions by using legal exceptions that allowed for treatment of minors without parental consent in cases considered an emergency. Sexual assault cases fit the bill perfectly. So, the first uses of what was known colloquially as “the morning-after pill” were for rape victims treated in hospital emergency rooms and student health centers.

In my book Student Bodies: The Influence of Student Health on American Society and Medicine (University of Michigan Press, 2007) I described how activism by college students and their advocates eventually led to the removal of many restrictions on minors’ access to birth control. In 1967, contraceptive salesman William R. Baird deliberately tested the Commonwealth of Massachusetts’ law against giving contraceptives and birth control advice to unwed minors. During the lecture at Boston University, Baird displayed various contraceptives and gave an unmarried female student a can of Emko contraceptive foam. Baird was promptly arrested by the Boston vice squad and charged with “crimes against chastity.” In 1972, the U.S. Supreme Court reversed Baird’s conviction, declaring in their decision Eisenstadt v. Baird, “if 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.” The way was paved for all women, regardless of marital status, to have access to safe and reliable birth control methods.

The majority opinion in Burwell v. Hobby Lobby does not undo these precedents but it does make it more difficult for women to obtain these forms of birth control at an affordable cost, something that the Affordable Care Act was intended to ameliorate. Hobby Lobby declares it is not interfering with its employees’ freedom, since they are free to purchase these forms of birth control on their own. However, the contraceptive choices for low-income women are reduced if not covered by health insurance. Emergency contraceptive pills cost $35 to $60. The cost of an IUD – which includes a preliminary medical exam, insertion of the device, and follow-up visits to a health care provider -- ranges from $500 to $1,000. Some brands of emergency contraceptive pills are now available over-the-counter without age restrictions, but this means they are not only expensive but, like other over-the-counter medications, excluded from health insurance coverage. Efforts to make emergency contraception available to minors for free have been controversial. Several years ago, there was a huge furor over a pilot program in New York City public schools called Connecting Adolescents to Comprehensive Healthcare program (CATCH). This program gave emergency contraceptives to students who requested them. This was in accordance with state law, which allowed students to obtain emergency contraception and other birth control methods at community clinics and school-based health centers without telling their parents. Although parents were given the opportunity to opt out of the program, some parents and conservatives were outraged because they felt CATCH undermined parental authority.

For now, the Burwell decision only applies to the four emergency contraceptive methods mentioned above. However, SCOTUSBlog reports that there are currently 50 cases being brought by for-profit companies against the Affordable Care Act’s contraceptive mandate, and many of these companies object to all forms of birth control, not just emergency contraception. On July 3, three days after the Burwell decision, the Court’s majority issued an unsigned order that barred the government from requiring Wheaton College, a Christian college in Illinois, to fill out paperwork that would exempt them from having to pay for their employees’ contraception and transfer birth control coverage to a third party.

The Griswold v. Connecticut and Eisenstadt v. Baird decisions were the product of an era when there was bipartisan support for birth control. Prescott Bush, father of President George H.W. Bush and grandfather of President George W. Bush, supported the American Birth Control League during the 1940s and served as treasurer of Planned Parenthood’s first national capital campaign in 1947. During the 1960s, even the staunchly conservative Republican presidential candidate, Barry Goldwater, supported unfettered access to contraception. In 1969, then-Representative George H. W. Bush proclaimed, “We need to make family planning a household word.” During his presidency, Richard Nixon successfully persuaded Congress to increase federal funding for birth control. Each year Planned Parenthood gives the Barry Goldwater award “to an outstanding elected official who has acted as a leader within the Republican Party to protect women’s reproductive rights across the United States.” Will the 2014 awardee be a Republican who dares to break with the party line and speak out against the Burwell decision? We shall see.

1Lawrence Lader, “Three Men Who Made a Revolution,” New York Times (April 10 1966), p. 58.