Contraception as a Sex Equality Right

Abstract

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. 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, constitutional protection as important as the cases prohibiting sex discrimination that the Court would decide in the next decade - perhaps even more so. Griswold is conventionally understood to have secured liberty for women. But 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.

Those who appreciate contraception’s singular importance to women call recent attacks on contraception a “war on women.” Yet, it is not 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 at least two important respects. 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 - both and.