Hobby Lobby: Birth Control and the Law

Birth control activists Margaret Sanger and Fania Mindell inside the Brownsville birth control clinic, circa October 1916

Birth control activists Fania Mindell and Margaret Sanger inside the Brownsville birth control clinic, circa October 1916

In 1964, when I was a 16-year-old college freshman, my Bronx pediatrician asked if I was sexually active, and offered to prescribe birth control whenever I started having sex.

In 1964, his doing so was legal in New York because of a 1918 ruling by Judge Frederick E. Crane of the New York Court of Appeals, but not in Massachusetts, where I was in school.

Birth control is only legal in this country because of a concerted campaign of civil disobedience carried out by Margaret Sanger and her followers. Here is a brief look at the legal history of birth control in the United States.

In 1917, a judge opined that women did not have “the right to copulate with a feeling of security that there will be no resulting conception.”

In 1873, the Comstock Act was passed into law, making the dissemination of “obscene” material through the mail illegal. Any attempts in the early part of the 20th century to teach about sexuality and the prevention of pregnancy — including Margaret Sanger’s work as well as Mary Ware Dennett’s The Sex Side of Life, which she wrote for her sons when she could not find any adequate literature to assist in educating them — were prosecuted under the Comstock Act.

Margaret Sanger witnessed her mother’s early death after 11 live births and seven miscarriages. Later, as a nurse on New York’s Lower East Side, she witnessed poor women dying from attempting to abort unwanted or dangerous pregnancies. She decided to challenge the Comstock Act.

From The American Experience:

Although married and the mother of three young children, Sanger devoted more and more of her time to her mission. Sanger’s anger turned into militancy, and her family took a backseat to her crusade. In 1914 she coined the term “birth control” and soon began to provide women with information and contraceptives. Indicted in 1915 for sending diaphragms through the mail and arrested in 1916 for opening the first birth control clinic in the country, Sanger would not be deterred. In 1921 she founded the American Birth Control League, the precursor to the Planned Parenthood Federation, and spent her next three decades campaigning to bring safe and effective birth control into the American mainstream.

In 1914, Margaret Sanger was arrested for distributing her pamphlet The Woman Rebel, which described and illustrated various methods of contraception. She spent a year in exile, where she met such people as Havelock Ellis and George Bernard Shaw, and learned about a Dutch contraceptive device, the diaphragm, which she began importing illegally into the United States.

In 1916, Sanger and her sister Ethel opened a clinic in the Brownsville neighborhood in Brooklyn to educate women about, and to distribute, birth control. It was open for 10 days before they were arrested. The trial judge in that 1917 case opined that women did not have “the right to copulate with a feeling of security that there will be no resulting conception.” (In 1956, Mike Wallace voiced a similar concern when he interviewed Sanger.) The appeal was denied, but Judge Crane’s ruling in 1918 made contraception prescribed by a doctor legal in New York.

In 1937, the federal Tariff Act of 1930 was held not to apply to contraceptive devices imported by a doctor for the health and well-being of her or his patients. But various state prohibitions still existed, and the Comstock Act was still the law until the Supreme Court made birth control legal for married couples in Griswold v. Connecticut in 1965.

The 1879 Connecticut law struck down in Griswold v. Connecticut held

“any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days.” The law further provided that “any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principle offender.

The Supreme Court decision held that there is a fundamental right to marital privacy. But contraception was still illegal outside of marriage until 1972.

In 1970, I spent a few days in Boston’s Charles Street Jail after a draft board sit-in. Reading the Sunday papers in my cell, I discovered that Bill Baird was in the men’s side of the jail after distributing contraceptives. In 1967, Baird had challenged a Massachusetts law banning contraception for unmarried people, publicly giving a Boston University student a condom and contraceptive foam after a lecture, for which he was arrested. In 1970, as I recall, he was arrested for returning to Massachusetts. The Baird v. Eisenstadt decision found that women, whether married or not, had personal autonomy, and that the distinction in Griswold between married and unmarried women was unconstitutional. This became a strong argument in the Roe v. Wade decision a year later.

I was 17 in 1965 when Griswold gave married women the right to use contraception, and the Baird decision was handed down on my 24th birthday. These are rights that were recognized when I was old enough to be affected by them, which makes this issue personal for me in a way I cannot describe. I never got pregnant, so I never needed an abortion when they were illegal, but I have friends who did. I never had a problem getting birth control. I had responsible partners, and in 1968 I was able to get a prescription for the Pill because of menstrual problems. I know other women who also got prescriptions for menstrual regulation, needed or not, or by wearing borrowed wedding rings.

Recognition of rights is fragile, and the forces that suppressed them for so long are still out there. The Hobby Lobby decision, handed down by the Supreme Court at the end of its last term, illustrates this. There was a concerted effort to keep birth control off the list of preventive health services that must be covered without cost to the consumer under the Affordable Care Act. Another case working its way through the system is Little Sisters of the Poor v. Sebelius, brought by an order of nuns objecting to filling in a form claiming a religious exemption to the Affordable Care Act’s contraception mandate. Their objection is that if they fill out the form, they authorize someone else to provide contraception to their lay employees.

All our freedoms were hard won, and we must not give an inch. Be sure to vote this year; Planned Parenthood Action Fund and Planned Parenthood Advocates of Arizona endorse federal and state candidates committed to support our reproductive rights.

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  1. Pingback: When Contraception Was a Crime: Griswold v. Connecticut | Planned Parenthood Advocates of Arizona

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