Many people do not remember the purchase and use of birth control products, and even literature about birth control options, even by married couples, was against the law in many states until 1965. There are those who have worked for the last 50 years to reverse the 1965 Griswold v. Connecticut Supreme Court finding that American women have a fundamental right of privacy in their reproductive decisions. That right includes making family planning decisions and the right to learn about and use birth control contraceptives.
U.S. Supreme Court Justice Antonin Scalia says that the pivotal decision which reversed a law that prohibited women from using contraception is not supported under his interpretation of the Constitution. During a July 2012 interview on Fox News, host Chris Wallace asked Scalia why he believed that women have no a Constitutional right of privacy to choose to use contraception. “There’s no right to privacy in the Constitution — no generalized right to privacy,” Scalia insisted. “Well, in the Griswold case, the court said there was,” Wallace pointed out. “Yeah, it did,” Scalia agreed. “And that was wrong.”
Republicans in the U.S. Congress and Senate want to amend to the U.S. Constitution to criminalize common birth control methods, including birth control pills and IUD's.
Sixty-three U.S. House Republicans, or over a quarter of the GOP conference in 2012, cosponsor a so called Personhood bill titled the "Sanctity of Human Life," bill to amend the U.S. constitution to outlaw birth control pills and IUD's. In the U.S. Senate, a companion Sanctity of Human Life bill was supported by more than a quarter of the Republicans in the Senate.
Personhood legislation has been regularly introduced in state legislatures around the U.S. over the past few years. The intent of the legislation is to classify fertilized eggs, zygotes, embryos, and fetuses as people in order to grant them full legal protection, including the right to life from the moment of conception. The law would criminalize abortion with no exceptions, and effectively ban many forms of contraception, in vitro fertilization and other reproductive health-care measures.
Personhood legislation and ballot initiatives to amend state constitutions have failed to pass in states around the country. Ballot measures to amend the state constitutions to include personhood language in both Colorado and North Dakota failed to pass by wide margins during the November 2014 elections. Personhood ballot measures and legislation have also failed to pass multiple times in Mississippi.
Most of the Republican field of 2016 presidential candidates are already on record supporting Personhood legislation and amendments to both the U.S. Constitutional and state constitutions around the nation to outlaw birth control. Supreme Court Justice Antonin Scalia is also on record saying women have no constitutionally protected right to use their choice of birth control.
While efforts to ban birth control use have failed, conservative Republicans who want to outlaw birth control use keep trying. Should they gain enough legislative control in the U.S. Congress or individual states, they would outlaw birth control use.
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In Griswold v. Connecticut (1965), the Supreme Court ruled that a state's ban on the use of contraceptives violated the right to marital privacy. The case concerned a Connecticut law that criminalized the encouragement or use of birth control. The 1879 law provided that "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."
Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, doctor and professor at Yale Medical School, were arrested and found guilty as accessories to providing illegal contraception. They were fined $100 each. Griswold and Buxton appealed to the Supreme Court of Errors of Connecticut, claiming that the law violated the U.S. Constitution. The Connecticut court upheld the conviction, and Griswold and Buxton appealed to the U.S. Supreme Court, which reviewed the case in 1965.
The Supreme Court, in a 7-2 decision written by Justice William O. Douglas, ruled that the law violated the "right to marital privacy" and could not be enforced against married people. Justice Douglas contended that the Bill of Right's specific guarantees have "penumbras," created by "emanations from these guarantees that help give them life and opinion." In other words, the "spirit" of the First Amendment (free speech), Third Amendment(prohibition on the forced quartering of troops), Fourth Amendment (freedom from searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment (other rights), as applied against the states by the Fourteenth Amendment, creates a general "right to privacy" that cannot be unduly infringed.
Further, this right to privacy is "fundamental" when it concerns the actions of married couples, because it "is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of our civil and political institutions." Because a married couple's use of contraception constitutes a "fundamental" right, Connecticut must prove to the Court that its law is "compelling" and "absolutely necessary" to overcome that right (i.e., the "strict scrutiny test"). Because Connecticut failed to prove this, the law was struck down as applied.
Other justices, while agreeing that marital privacy is a "fundamental right" and that the Connecticut law should be struck down, disagreed with Justice Douglas as to where in the Constitution such a "fundamental right" exists. In his concurrence, Justice Arthur Goldberg argued that the Ninth Amendment, which states that the Bill of Rights does not exhaust all the rights contained by the people, allows the Court to find the "fundamental right to marital privacy" without having to ground it in a specific constitutional amendment. In another concurrence, Justice John Marshall Harlan IImaintained that a "fundamental right to marital privacy" exists only because marital privacy has traditionally been protected by American society. Finally, in yet another concurrence, Justice Byron White argued that a fundamental right to marital privacy constitutes a liberty under the Due Process Clause, and is protected by the Fourteenth Amendment against the states.
Yet, for all their differences, the majority in Griswold v. Connecticut agreed that the "right to privacy," in addition to being "fundamental," was "substantive." In West Coast Hotel v. Parrish (1937), the Court had rejected the idea that the Constitution protects "substantive rights," i.e., protects certain activities from government interference that are not explicitly mentioned in the Bill of Rights. In Griswold, however, it ruled that "substantive rights" do exist in non-economic areas like "the right to privacy," even if they do not in economic activities like the right to contract. Over the next 10 years, the Court expanded this fundamental, substantive "right to privacy" beyond the marital bedroom, ruling that the state could not ban the use of contraceptives by anyone (Eisenstadt v. Baird [1972]), and that the state could not ban most abortions (Roe v. Wade [1973]).
More:
How Contraception Transformed the American Family
The Unfinished Fight Over Contraception
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