The Yale Law Journal

VOLUME
124
2014-2015
Forum

Contraception as a Sex Equality Right

02 Mar 2015
Neil S. Siegel & Reva B. Siegel

“Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation’s social, political, and economic life?”

—Ruth Bader Ginsburg, 19781

“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.”

Planned Parenthood v. Casey, 19922

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the fiftieth anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut.3 It is a good time to reflect on the values served by protecting women’s access to contraception.

In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote,4 constitutional protection as important as the cases prohibiting sex discrimination that the Court would decide in the next decade5—perhaps even more so. Griswold is conventionally understood to have secured liberty for women. But, we argue, the right to contraception also secures equality for women, as Ruth Bader Ginsburg saw clearly in the 1970s and as the Court eventually would explain in Planned Parenthood v. Casey. Because Griswold was decided before the sex equality claims and cases of the 1970s, the Griswold Court did not expressly appeal to equality values in explaining the importance of constitutionally protected liberty—as, for example, the Casey Court did.6 Yet as some contemporaries appreciated, in protecting decisions concerning the timing of childbearing, the Griswold Court was protecting the foundations of equal opportunity for women, given the organization of work and family roles in American society.

Today, those who appreciate contraception’s singular importance to women call recent attacks on contraception a “war on women.”7 Yet even now, it may not be immediately clear that the right to contraception is a sex-equality right. Both men and women use contraception, even if the forms of contraception that they use are sex-differentiated. The Connecticut statute banning contraception applied to both sexes.

Analyzing the right to contraception in historical context helps to clarify the ways in which the right to contraception secures equality, as well as liberty, for women. As Griswold turns fifty, we return to the historical record to demonstrate that the ban on contraception struck down in that case was enforced in ways that reflected and reinforced traditional gender roles. Even though the law was written to apply to both sexes, the state applied the law to men and women differently. In recovering this history, we show how the regulation of contraception is tied to double standards in sex and parenting. Recognizing these deep and enduring differences in gender roles demonstrates why denying women control over the timing of childbearing denies them equal citizenship. With these concerns in view, it becomes clear why judicial decisions and laws securing access to effective and affordable contraception vindicate both equality and liberty values.8

I. contraception, sex, and motherhood in the century after the civil war

Contraception was first banned under federal and state law not in the Founding era, but in the decade after the Civil War. The 1873 Comstock Act was premised on the view that it was obscene to separate sex and procreation.9 Soon after, many states passed laws modeled on the Comstock Act criminalizing contraception and abortion.10

Like the federal law, Connecticut’s ban on contraception drew no formal distinctions by sex; rather, it prohibited “[a]ny person” from “us[ing] any drug, medicinal article or instrument for the purpose of preventing conception.”11 Even so, contemporaries understood the judgments about nonprocreative sex in the federal and state laws through Victorian mores concerned with differences in the physical and social relations of reproduction.12 The Comstock Act, for example, was enacted a year after Justice Bradley explained that “[t]he constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”13 Doctors reasoned that women who enjoyed sex while endeavoring to avoid its natural procreative consequences engaged in “physiological sin”—and predicted that they would suffer health harms as a result.14 Press coverage of the Comstock Act focused on women who were prosecuted for defying the ban.15

The new bans on contraception applied to all at a time when men and women were held to gender-differentiated double standards in matters of sex and parenting. Men were entitled to breach prevailing sexual norms in ways that women were not, and women were expected to assume parenting responsibilities in ways that men were not.16

By the twentieth century, Connecticut and many other jurisdictions relaxed enforcement of Comstock laws in ways that reflected these role-based judgments about men and women. During World War I, the U.S. military concluded that providing condoms to men significantly lowered the rates of sexually transmitted diseases and authorized the use of condoms for preventing disease.17 Following the federal government’s lead, the Massachusetts high court crafted an exception to the state’s ban on contraception permitting use of condoms to prevent the spread of venereal disease.18 The court recognized an implied exception to the ban that would protect men’s health, even though two years earlier the court had reasoned that the ban was absolute and prohibited the sale of contraceptives to married women on a physician’s prescription to preserve their lives or health.19 The court granted a health exception to men—even when their lives were not threatened by venereal disease20—after having refused a health exception for women even when their lives were threatened by pregnancy.21

II. griswold and disparate treatment

Gendered assumptions about sex and parenting also shaped enforcement of Connecticut’s ban on contraception, giving rise to sex equality concerns of several kinds in Griswold.

By the mid-twentieth century, it was widely understood that one could buy contraceptives in drug stores in Connecticut. The state deemed the threat of venereal disease sufficiently compelling to make a health exception to its law banning contraception. This exception allowed pharmacies to sell condoms under the auspices of “disease prevention” as well as certain products for “feminine hygiene” that might have contraceptive properties.22 Yet like Massachusetts, the Connecticut Supreme Court rejected a health exception to the ban that would allow doctors to prescribe contraception for women physically unable to tolerate pregnancy or childbirth.23 The court advised women with a medical need for contraception that they should simply abstain from sex,24 but did not advise men to protect themselves from the risk of venereal disease in this fashion. Instead, the state allowed men to buy condoms on demand in the state’s drug stores, while making no effort to ensure that men (particularly married men) actually were using condoms to prevent disease, as opposed to conception.25

Connecticut’s crafting of a health exception for men, but not for women, led to a second inequality in the state’s enforcement of its ban on contraception. Connecticut enforced the ban so as to allow men easy access to the most effective form of contraception for men (condoms), but to deny women access to the most effective forms of contraception for women (diaphragms or the pill).26 At oral argument in Griswold, Justice Brennan repeatedly asked whether the plaintiffs were challenging this pattern of enforcement on equal protection grounds.27 Law professor Thomas Emerson, who with Catherine Roraback represented the plaintiffs, responded that discriminatory enforcement of the statutes was part of the plaintiffs’ due process claim.28

By providing health exceptions for men but not for women, and by allowing men but not women access to the most effective forms of contraception, Connecticut enforced its ban so as to give men more control than women in separating sex and childbearing. Connecticut’s disparate treatment of men and women was constitutionally significant because it reflected and reinforced traditional gender roles in sex and parenting.

Indeed, because of gender differences in the physical and social relations of reproduction, laws restricting contraception present equality questions for women, even if the restrictions on contraception are evenly enforced against both sexes. Given the organization of education and work, laws restricting contraception deny education and employment opportunities to those who bear and rear children. Litigants expressed this understanding on the path to Griswold with increasing clarity. For example, law students at Yale who were represented by Catherine Roraback argued that the state’s ban on contraception deprived students of control over the timing of childbearing, which, they asserted, was needed in order to obtain a professional education.29

Reflecting this understanding, the ACLU’s amicus brief in Griswold argued that Connecticut’s ban on contraception violated equal protection:

[T]he right of the individual to engage in any of the common occupations . . . applies to women as well as men. . . . [I]n addition to its economic consequences, the ability to regulate child-bearing has been a significant factor in the emancipation of married women. In this respect, effective means of contraception rank equally with the Nineteenth Amendment in enhancing the opportunities of women who wish to work in industry, business, the arts, and the professions. Thus, the equal protection clause protects the class of women who wish to delay or regulate child-bearing effectively.30

Remarkably, the ACLU uttered those words in 1965.

In the decade after Griswold, women challenged beliefs about “separate spheres” that restricted women to childrearing and men to breadwinning. In 1970, on the fiftieth anniversary of the ratification of the Nineteenth Amendment, a “second wave” feminist movement organized a national “Strike for Equality” in which it argued that equal citizenship required not only equal suffrage and the ratification of an Equal Rights Amendment, but also laws changing the work and family arrangements in which women bear and rear children.31 The Supreme Court responded, reading the Equal Protection Clause for the first time to prohibit sex classifications in laws that impose caregiver and breadwinner roles on women and men.32 Yet then and now, the Court’s sex discrimination cases allow, but do not require, changes in the organization of work that would help women and men to integrate caregiving and breadwinning.33

Today, no less than at the time of Griswold, control over the timing of childbirth is indispensable if those who raise children are to have equal opportunities to participate in the worlds of education, employment, and politics. The right that the Court recognized in Griswold helps to secure equality as well as liberty for women. (In fact, in extending the contraception right to unmarried women and men in Eisenstadt v. Baird,34 the Court applied the equal protection framework of Reed v. Reed,35 perhaps reflecting a dawning recognition that equality values were at stake.) In Griswold, as in Casey and Lawrence v. Texas, the Court protected equality values as an integral part of due process.36

Equality values anchor not only the individual’s right to contraception free of government interference, but also the government’s authority to help individuals secure access to contraception. The Court’s decisions declaring compelling interests in eradicating race and sex discrimination make clear that those compelling interests encompass both core concerns of the community and crucial concerns of the individuals who are the intended beneficiaries of the law’s protections.37 The Court’s decision in Burwell v. Hobby Lobby Stores38 reflects this understanding.39 Writing for the Court, Justice Alito invoked the constitutional right recognized in Griswold in the course of discussing the government’s compelling interests in providing employees insurance coverage of contraception.40 Because women’s health, liberty, and equal citizenship stature are at stake in ways that matter to individuals and to the society as a whole, governments have compelling interests in ensuring access to effective and affordable contraception.41

Neil S. Siegel is David W. Ichel Professor of Law, Duke Law School. Reva B. Siegel is Nicholas deB. Katzenbach Professor of Law, Yale Law School. They thank Allison Day for extraordinary research assistance, and Kate Bartlett, Cary Franklin, Ruth Bader Ginsburg, Serena Mayeri, Melissa Murray, Doug NeJaime, and Ryan Williams for excellent suggestions.

Preferred Citation: Neil S. Siegel & Reva B. Siegel, Contraception as a Sex Equality Right, 124 Yale L.J. F. 349 (2015), http://www.yalelawjournal.org/forum/contraception-as-a-sex-equality-right.