Birth control and contraception


Description: The temporary or permanent prevention of pregnancy by barrier devices, hormonal pills and implants, surgery, spermicides, intrauterine devices, or other means.

Significance: The Supreme Court's landmark 1965 ruling struck down a law preventing the distribution of contraceptives to married couples and established an implied constitutional “right of marital privacy.” This right to privacy was cited in the 1973 ruling that found state antiabortion laws unconstitutional.

In the 1800's some Christians viewed contraception as immoral, believing that its widespread use would lead to promiscuity, marital infidelity, divorce, child abandonment, and abortion. In the mid-nineteenth century several states passed statutes banning the dissemination and use of contraceptives. In 1873 Congress enacted a law forbidding the sending of contraceptives or information about them through the mail. Early in the twentieth century, Margaret Sanger and others began campaigning for public acceptance of birth control and the repeal of laws against contraception. Some campaigners viewed contraception as an instrument of women's liberation, some sought the freedom to have sex without fear of pregnancy, and others were principally motivated by eugenic goals. By the 1940's most states permitted physicians to prescribe contraceptives. Nonprescription distribution of contraceptives was still legally restricted although these laws were rarely enforced. Procontraception groups challenged these restrictions on contraceptives in federal courts. Their initial efforts were unsuccessful. In Gardner v. Massachusetts (1938), Tileston v. Ullman (1943), and Poe v. Ullman (1961), the Supreme Court supported legislation placing restrictions on contraceptive use and distribution. In Griswold v. Connecticut (1965), however, the Court struck down a state law that forbade the distribution of contraceptives to and their use by married couples. Writing for the Court, justice William O. Douglas claimed that the statute violated a “right of marital privacy,”which was found in “penumbras formed by emanations” from various specific Bill of Rights guarantees. In concurring opinions, several justices proposed alternative justifications for the holding. Most notably, Arthur J. Goldberg suggested treating marital contraception as an “unenumerated right” under the Ninth Amendment. In dissent, Hugo L. Black and Potter Stewart argued that nothing in the text, logic, structure, or original understanding of the Constitution prevents a state from restricting contraception pursuant to its police power to protect public health, safety, and morals. They faulted the majority for substituting an allegedly enlightened judicial view of the requirements of public morality for the contrary judgment of the elected representatives of the people of Connecticut. Griswold purported to protect the institution of marriage against legal interference with spousal decisions about birth control. In Eisenstadt v. Baird (1972), the Court ruled that this right to privacy extended to individuals, married or single, who wished to use contraceptives. A year later, the right of privacy was invoked in a ruling against state laws forbidding abortion in Roe v. Wade (1973). Opponents of judicial activism criticized the Court's invalidation of laws against contraceptives as a step toward judges injecting their personal views about morality and public policy into the Constitution. Supporters of the right of privacy doctrine were disappointed by the Court's unwillingness to expand the doctrine beyond decisions about childbearing to embrace consensual sex generally. In Bowers v. Hardwick (1986), the Court upheld laws against homosexual sodomy despite the rulings in the contraception cases.

Further Reading

  • Appleby, Brenda Margaret. Responsible Parenthood: Decriminalizing Contraception in Canada. Toronto: University of Toronto Press, 1999.
  • Critchlow, Donald T. Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America. New York: Oxford University Press, 1999.
  • Hilliard, Bryan. The U.S. Supreme Court and Medical Ethics: From Contraception to Managed Health Care. St. Paul, Minn.: Paragon House, 2004.
  • Mason, J. K. Medico-legal Aspects of Reproduction and Parenthood. Brookfield, Vt.: Dartmouth, 1990.