BIRTH CONTROL

BIRTH CONTROL

A measure or measures undertaken to prevent conception.

In the 1800s, temperance unions and antivice societies headed efforts to prohibit birth
control in the United States. Anthony Comstock,
the secretary of the Society for the Suppression
of Vice, advocated a highly influential law passed
by Congress in 1873. It was titled the Act for the
Suppression of Trade in, and Circulation of
Obscene Literature and Articles of Immoral Use,
but known popularly as the COMSTOCK LAW or
Comstock Act (18 U.S.C.A. § 1416-62 [1964]; 19
U.S.C.A. § 1305 [1964]). The Comstock Act pro-
hibited the use of the mail system to transmit
obscene materials or articles addressing or for
use in the prevention of conception, including
information on birth control methods or birth
control devices themselves.
Soon after the federal government passed
the Comstock Act, over half of the states passed
similar laws. All but two of the rest of the states
already had laws banning the sale, distribution,
or advertising of contraceptives. Connecticut
had a law that prohibited even the use of contra-
ceptives; it was passed with little or no consider-
ation for its enforceability.
Despite popular opposition, birth control
had its advocates, including MARGARET SANGER.
In 1916, Sanger opened in New York City the first birth control clinic in the United States. For doing so, she and her sister Ethel Byrne, who
worked with her, were prosecuted under the
state’s version of the Comstock law (People v.
Byrne, 99 Misc. 1, 163 N.Y.S. 682 [1917]; People
v. Sanger, 179 A.D. 939, 166 N.Y.S. 1107 [1917]).
Both were convicted and sentenced to thirty
days in a workhouse.

After serving her sentence, Sanger continued
to attack the Comstock Act. She established the
National Committee for Federal Legislation for
Birth Control, headquartered in Washington,
D.C., and proposed the “doctor’s bill.” This bill
advocated change in the government’s policy
toward birth control, citing the numerous
instances in which women had died owing to
illegal ABORTIONS and unwanted pregnancies.
The bill was defeated, due, in part, to opposition
from the Catholic Church and other religious
groups.

But when the issue of Sanger’s sending birth
control devices through the mail to a doctor was
pressed in United States v. One Package, 13 F.
Supp. 334 (S.D.N.Y. 1936), the court ruled that
the Comstock Act was not concerned with preventing
distribution of items that might save the
life or promote the well-being of a doctor’s
patients. Sanger had sought to challenge the
Comstock Act by breaking it and sending contraception
in the mail. Her efforts were victorious
and the exception was made. The doctor to
whom Sanger had sent the device was granted its
possession.

Sanger furthered her role in reforming attitudes
toward birth control by founding the
Planned Parenthood Federation of America in
1942. Planned Parenthood merged previously
existing birth control federations and promoted
a range of birth control options. In the 1950s,
Sanger went on to support the work of Dr. Gregory
Pincus, whose research eventually produced
the revolutionary birth control pill.
By the 1960s, partly as a result of Sanger’s
efforts, popular and legal attitudes toward birth
control began to change. The case of GRISWOLD
V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14
L. Ed. 2d 510 (1965), loosened the restrictions of
the Comstock Act. When the Planned Parenthood
League of Connecticut opened in 1961, its
executive director, Estelle Griswold, faced
charges of violating Connecticut’s ban on the
use of contraceptives (Conn. Gen. Stat. Ann.
§§ 53-32, 54-196 [1958]).
A divided Supreme Court overturned Griswold’s
conviction with a ground-breaking opinion
that established a constitutional right to
marital privacy. The Court threw out the underlying
Connecticut statute, which prohibited
both using contraception and assisting or counseling
others in its use. The majority opinion,
authored by Justice WILLIAM O. DOUGLAS,
looked briefly at a series of prior cases in which
the Court had found rights not specifically enumerated
in the Constitution—for example, the
right of FREEDOM OF ASSOCIATION, which the
Court has said is protected by the FIRST AMENDMENT,
even though that phrase is not used there
(NAACP v. Alabama, 357 U.S. 449, 78 S. Ct.
1163, 2 L. Ed. 2d 1488 [1958]). Douglas concluded
that various guarantees contained in the
Bill of Rights’ Amendments One, Three, Four,
Five, Nine, along with Amendment Fourteen,
create “zones of privacy,” which include a right
of marital privacy. The Connecticut statute,
which could allow police officers to search a
marital bedroom for evidence of contraception,
was held unconstitutional; the government did
not have a right to make such intrusions into the
marital relationship.
The other branches of the government followed
the Court’s lead. President LYNDON B.
JOHNSON endorsed public funding for family
planning services in 1966, and the federal government
began to subsidize birth control services
for low-income families. In 1970 President
RICHARD M. NIXON signed the Family Planning
Services and Population Research Act (42
U.S.C.A. § 201 et seq.). This act supported activities
related to population research and family
planning.
More and more, the Comstock Act came to
be seen as part of a former era, until, in 1971, the
essential components of it were repealed. But
this repeal was not necessarily followed in all the
states. In the 1972 case of Eisenstad v. Baird, 405
U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349, the
Court struck down a Massachusetts law still on
the books that allowed distribution of contraceptives
to married couples only. The Court held
that the Massachusetts law denied single persons
EQUAL PROTECTION, in violation of the FOURTEENTH
AMENDMENT.
In the 1977 case of Carey v. Population Services
International, 431 U.S. 678, 97 S. Ct. 2010,
52 L. Ed. 2d 675, the Supreme Court continued
to expand constitutional protections in the area
of birth control. The Court imposed a strict
standard of review for a New York law that it
labeled “defective.” The law had prohibited anyone but physicians from distributing contraceptives
to minors under sixteen years of age. The
law had also prohibited anyone but licensed
pharmacists from distributing contraceptives to
persons over sixteen. Carey allowed makers of
contraceptives more freedom to distribute and
sell their products to teens.
Throughout the 1990s, cases were brought
in a number of jurisdictions in which parents
sought to prohibit the distribution of condoms
and other forms of birth control in schools to
unemancipated minor students without the
consent of a parent or guardian. Although some
jurisdictions held that such birth control distribution
programs violated the parents’ DUE
PROCESS rights, other jurisdictions upheld the
privacy rights of such minors and found the
programs to be constitutional.
More controversy arose after women gained
access to RU-486, the so-called “morning-after”
pill and later generations of emergency contraceptives,
which are high-dosage birth control
pills designed to be taken shortly after unprotected
intercourse has taken place. Emergency
contraception continues to be opposed by
antiabortion groups on the ground that it is
another form of abortion.
Since 2000, the election of Republican
majorities in various state legislatures has
strengthened the position of groups opposing
abortion and reproductive rights. In addition to
continuing to battle for the right to require
parental consent for contraceptive services to
minors both in schools and community health
clinics, a number of conservative groups support
“abstinence-only” sexuality education
classes in schools.While some proponents want
to make such classes optional and are willing to
have them taught alongside traditional courses
that discuss various methods of birth control,
other adherents seek to have these classes taught
in place of the traditional courses.
President GEORGE W. BUSH’s election in 2000
as well as the Republican gains in the House in
2002, further strengthened the efforts of those
who seek to restrict access to birth control education
and methods.
FURTHER READINGS
Bacigal, Ronald J. 1990. The Limits of Litigation—The Dalkon
Shield Controversy. Durham, N.C.: Carolina Academic
Press.
Hoff-Wilson, Joan. 1991. Gender and Injustice: A Legal History
of U.S.Women. New York: New York Univ. Press.
McCann, Carole R. 1994. Birth Control Politics in the United
States, 1916–1945. Ithaca: Cornell Univ. Press.
McLaren, Angus. 1990. A History of Contraception from
Antiquity to the Present. Cambridge, Mass.: Blackwell.
Planned Parenthood. Available online at (accessed June 1, 2003).
Solinger, Rickie. 2000.Wake Up Little Susie: Single Pregnancy
and Race before Roe v.Wade. New York: Routledge.
CROSS-REFERENCES
Family Law; Griswold v. Connecticut (Appendix, Primary
Document); Parent and Child; Privacy; Reproduction;
Schools and School Districts.