Publication Date

July 23, 2014


Legal, Public History

As Americans contemplate the implications of the recent judgment in Burwell v. Hobby Lobby,most considerations focus on two aspects of the decision: first, the ruling that closely held corporations have religious rights, and second, the assertion that the relevant statute on which those rights are based and on which the majority opinion is predicated—the Religious Freedom Restoration Act of 1993—offers more protection for religious groups than the First Amendment’s free exercise clause, under which Hobby Lobby certainly would not have won this case. What is missing here is a third essential element: the claim by Hobby Lobby for an exemption from the Affordable Care Act’s mandate offering birth control in health plans.

It is not surprising that birth control would have priority as a claimed exemption. The matter of affording women control over their reproductive lives has long been contested and still is, especially when considered as a social responsibility. In the case of Hobby Lobby, on religious grounds its owners object to paying for health plans that include IUDs and Plan B, which they consider abortifacients, having the effect in their view of preventing an already fertilized egg from developing and inhibiting its attachment to the uterus. Most scientists disagree with this claim. In any case, corporations can now use their personal objections to take away a woman’s right to contraceptive coverage guaranteed by federal law.

The history of the birth control movement gives context to the Hobby Lobby decision. In 1873, the US Congress defined contraception as pornography, making it illegal and punishable by five years in prison to send through the mail information about “contraceptive medications and devices.” Birth control did not disappear; rather the insistence that it was essential for women’s health became the platform of dedicated women activists. In 1916, when Margaret Sanger opened the first birth control clinic in Brooklyn, she was arrested, tried, and jailed, as were other activists. Her unsuccessful defense was based on her First Amendment right of free expression and the benefit to society of healthier mothers and children. Justice Ginsburg echoes the latter sentiments in her dissent: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

Critics, mostly Roman Catholics, were not persuaded, although public opinion was shifting in favor of a commonsense separation of sex from reproduction. During the New Deal, Sanger, by that time the leader of the American Birth Control League, sought unsuccessfully to make birth control available in public health clinics. The movement won a major court victory in 1935, and it is from the courts that, until recently, advances have come. In United States v. One Package of Japanese Pessaries, involving confiscated diaphragms from Japan, the federal district court in New York in 1936 ruled that the pessaries were being imported for the lawful purpose of curing or preventing disease. Next, the landmark Griswold v. Connecticut in 1965 overturned Connecticut’s prohibition on birth control and famously provided “a penumbra where privacy is protected from government intrusion.” In 1970, under Title 10 of the Family Services and Population Act—a century after Comstock—Congress agreed to federally financed family planning.

In a historic statement of how far the birth control movement has come but how fragile its advances are, Justice Alito cites Griswold and agrees that women and men have a constitutional right to obtain contraceptives. Yet he questions whether there are any compelling interests to offer birth control in the ACA mandate. The reasons for publically financed programs are, he complains, couched in very broad terms, such as “promoting public health and gender equality.” Such attitudes suggest the anachronistic possibility of future contests over federal programs—a Hyde amendment for contraception. On the other hand, Justice Ginsburg sees the well-documented public health benefits for women and additionally the impact of placing the personal opinions of employers over the benefits for employees (in this case women) who do not share the beliefs of their employer.

Fears emerged that a Supreme Court on which five male Roman Catholic justices sit will continue to chip away at efforts to include birth control in health plans. Four days after Hobby Lobby the court ordered a temporary injunction involving Wheaton College’s refusal to sign a form requesting a bypass for birth control coverage, an opt-out process created by the Obama administration to accommodate religious institutions. Even signing violated Wheaton College’s religious beliefs; the court temporarily agreed. But, objected Justice Sotomayor, thinking one’s religious beliefs are substantially burdened does not make it so. What Hobby Lobby tells us is that while the specifics have changed, the controversies over birth control continue.  

Jean H. Baker is the Bennett-Harwood Professor of History at Goucher College. She is the author of ten books, most recently Margaret Sanger: A Life of Passion.

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