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 effort of civil disobedience carried out by Margaret Sanger and her followers. This diary is a brief look at the legal history of birth control in the United States.
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 were prosecuted under the Comstock Act, including not just Margaret Sanger's work, but also a booklet written by Mary Ware Dennett, The Sex Side of Life, which she wrote for her sons when she could not find any adequate literature to assist educating them.
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 learned about a Dutch contraceptive device, the diaphragm, which she began importing illegally into the US.
In 1916 Margaret Sanger and her sister Ethel opened a clinic in Brooklyn, NY to educate women about, and to distribute, birth control. It was open for ten days when 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." Appeal was denied, but the 1918 related ruling that made contraception legal in the New York circuit followed soon after.
Contraception was still illegal in most states.
Again from Wikipedia:
In 1929, Sanger formed the National Committee on Federal Legislation for Birth Control in order to lobby for legislation to overturn restrictions on contraception. That effort failed to achieve success, so Sanger ordered a diaphragm from Japan in 1932, in order to provoke a decisive battle in the courts. The diaphragm was confiscated by the United States government, and Sanger's subsequent legal challenge led to a 1936 court decision which overturned an important provision of the Comstock laws which prohibited physicians from obtaining contraceptives. This court victory motivated the American Medical Association in 1937 to adopt contraception as a normal medical service and a key component of medical school curriculumsThe decision, however, said nothing about the legality of contraception itself, which was still illegal until the Griswold decision of 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. It was a Massachusetts case that led to the 1972 Baird v. Eisenstadt case that 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 decision a year later.
I was 17 in 1965, 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.
Recognition of rights is fragile, and the forces that suppressed them for so long are still out there, as this week's decision in the Hobby Lobby case show. It is interesting that Margaret Sanger, early in her career, saw access to contraception as a free speech issue, especially when the distortion of the first amendment in the Hobby Lobby case is considered.
There are so many misconceptions of the case that I wanted to give an idea of the struggle it took before our personal autonomy was recognized. And to point out that Hobby Lobby is not required by the ACA to provide contraception or anything else to its employees. It only has to provide health insurance. The rules for health insurers are something else entirely. Any action that conflates the two is purely political, and this includes the majority decision.
All our freedoms were hard won, and we must not give an inch.