It was Griswold v Connecticut that left decisions for contraception up to individual families instead of the government. Although, based on the constant legislation proposed and passed to this day, you’d never know it.
Griswold hinged on the Fourteenth Amendment arguing that the federal government’s Comstock Act violated specific rights that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law…nor deny any person the equal protection of the laws.” Basically, a right to privacy included a right to decisions about one’s own sexuality and decisions not to reproduce.
Years prior to Griswold, the Comstock Act made it a criminal offense to use the United States postal service for the distribution of contraceptives, sex toys, erotica and abortifacients — or any literature about them. Jurisdictions across the country imposed fines or imprisonment for selling or distributing what was deemed “obscene”, including contraception.
It read, in part:
"Be it enacted…. That whoever, within the District of Columbia or any of the Territories of the United States… shall sell… or shall offer to sell, or to lend, or to give away, or in any manner to exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession, for any such purpose or purposes, an obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing or other representation, figure, or image on or of paper or other material, or any cast instrument, or other article of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertise the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means, any of the articles in this section…can be purchased or obtained, or shall manufacture, draw, or print, or in any wise make any of such articles, shall be deemed guilty of a misdemeanor, and on conviction thereof in any court of the United States… he shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars nor more than two thousand dollars, with costs of court." — The Comstock Act 17 Stat. 598
And yes, that included anatomy text books too.
Griswold was landmark, but still limited. The prevailing ideology of the day was still coverture, and the ruling only applied to married couples. It wasn’t until 1972, single women were able to enjoy their sexuality too.
At least in theory.
Today, according to Guttmacher, nine states have restrictions on contraception for women and across the nation there are at least 231 restrictions (and counting) preventing a woman’s right to control her own reproductive journey. (Men don’t have any).
And in 2014, the Supreme Court sent the message to women that corporations were free to arbitrarily discriminate against them when it came to access to contraception.
And what of the feminist fight to make birth control accessible to all?* Fifty-five years after its approval, the pill, the most commonly used form of contraception, still requires women to ask permission. Even though the American College of Obstetricians and Gynecologists continually reaffirms their statement recommending those hoop jumps come to an end:
“In the interest of increasing access to contraception, and based on the available data, the American College of Obstetricians and Gynecologists’ Committee on Gynecologic Practice makes the following conclusions and recommendations: Weighing the risks versus the benefits based on currently available data, OCs should be available over-the-counter” — ACOG Number 544, December 2012 (Reaffirmed 2014)
The American Constitution Society for Law and Policy is fighting for change, arguing that affordable, accessible, safe contraception and reproductive health belongs in our nation.
With good reason.
In 2014, Guttmacher released data highlighting the number of women of child bearing age who require and use contraception: 99%.
That’s about 62 million women. And yet, almost every day we get treated to sound bytes and statements from elected officials and would be law-makers wanting to take us back to those “good old days”. These same politicians who tout they are all about Constitutional law are still running on platforms that ignore the premise of Griswold.
That premise is liberty and privacy in a family’s own sexuality and reproduction. Not big government hovering over our lingerie and medicine cabinets.
That glaring contradiction is the elephant in the room. Every vote against reproductive rights ignores the precedent in our own Constitution. It casts a ballot that denies women their own decision to be sexually sovereign. It tells us coverture ought to be the law of the land again.
It’s been two generations since Griswold’s historic ruling. Fifty years later and we’re still fighting for that empowerment. It’s time the debate come to an end.
We can stand on our Constitutional right to privacy. To make use of our liberty. To stop allowing legislatures to dictate if our sexual health decisions are obscene. We can be free.
But we aren’t going to get there while antiquated ideologies surrounding sexuality and reproduction still permeate our country.
It's time to learn the facts. And act accordingly.
*Has our history in developing means to control reproduction been wrought with its own set of contradictions? Certainly. And we don’t have to ignore the past to forward progress. We can accept that contraception and reproductive choice is a journey marred in mistake while also enabling women to take active participation in the private decisions they choose to make.