The Unfinished Fight Over ContraceptionDigg This!
CAN we still be arguing about a woman’s ability to control her own fertility? Almost 50 years ago in Griswold v. Connecticut, the Supreme Court struck down state restrictions on contraception because they violated a right to privacy. But the issue has not gone away. Rick Santorum injected it into the presidential race by indicating that Griswold should be overturned so that states could ban contraception altogether. And the Senate just voted down a Republican effort to allow employers and health insurance companies to refuse coverage for contraceptives if they had moral or religious objections.
Why are issues that the courts decided so long ago still unresolved? Maybe it is time to recognize that law alone is not enough to effect social change. It must be linked to social activism on behalf of women’s rights.
I should know. Fifty-five years ago, I had an opportunity to take a stand in favor of the right of women to control their fertility — and I did so through the courts.
It was 1957, and fresh out of the University of Wisconsin I enrolled in the Yale Law School — one of only six women in my graduating class. In my second year at Yale, several of our professors asked my husband and me to join a lawsuit challenging Connecticut’s birth-control law, which outlawed the sale and use of contraceptive materials and prohibited a doctor from prescribing birth control even to married women. One goal of the lawsuit was to remove the statutory obstacle to opening Planned Parenthood clinics in Connecticut so that poor families could have access to family-planning services.
I immediately agreed to join the case. Others did as well, but my husband and I were the only ones to use our real names. Because people used pseudonyms, the lead case came to be called Poe v. Ullman, but there was a companion case called Trubek v. Ullman. Poe raised a variety of grounds for challenging the statute and eventually landed in the Supreme Court.
I was proud to put my name on the case. To serve as a plaintiff, though a largely passive role, suited my vision of my future as a social justice lawyer. I supported Planned Parenthood. I believed women should have access to birth control so they could have both a career and a family. I wanted those things for myself. I was no sexual radical: I was married, a “good girl” uninterested in sexual freedom, and I thought of abortion as frightening. But I was planning to have a family and a career as a lawyer. I believed I should be free to choose the timing of my children’s births so I could do both.
Poe was thrown out by the Supreme Court on a technicality. To force the issue, Planned Parenthood opened a clinic, leaving the state with no choice but to close it down. This landed the issue back in the Supreme Court — this time with different plaintiffs, as Griswold v. Connecticut — which found the statute an unconstitutional intrusion on marital privacy.
The privacy argument in Griswold led to the legalization of contraception. But it also had a much larger impact: the privacy doctrine played a central role in Roe v. Wade (1973), which declared some barriers to abortion unconstitutional; was used by the court in Lawrence v. Texas (2003), which struck down bans on consensual same-sex sexual activity; and has been cited in state court decisions upholding same-sex marriage.
We can celebrate Griswold, Roe and all the cases that stemmed from the Poe litigation. They are important landmarks in American jurisprudence. But as I look back I am dismayed by how few of the issues I was fighting for at the time of Poe are resolved. To be sure, we have important rights and more legal privacy. But we still have not provided all the support women need to combine rewarding careers and healthy families. Planned Parenthood is under siege and poor women who are seeking comprehensive reproductive care are still at risk. Presidential candidates can get away with saying that all contraception should be outlawed. Comprehensive child care services are difficult to locate, and fully financed family and medical leave is still controversial.
In short, we won the legal battle but not the war. Women are still not guaranteed control over their lives, because the necessary social supports were never secure. The initial goal of Griswold was to help women — and even though the precedent has helped with same-sex marriage laws, those initial needs, especially of poor women, have been left largely unmet.
The universal coverage plan outlined in President Obama’s Affordable Care Act is a good step forward, and we should do all we can to ensure it. Perhaps if activism had been linked to the lawsuits, the aims I fought for would have been secured, and we would be spared the spectacle of Republican candidates threatening, yet again, a woman’s right to control her own fertility.
Louise G. Trubek is a public interest lawyer and an emerita professor at the University of Wisconsin Law School.