Birth Control and the Right to Privacy, a 50 Year Constitutional Debate Rages On

By Kristen Friend, staff writer – March 14, 2012 Just over a month ago, President Obama made the seemingly non-controversial announcement that all new health insurance plans would be required to cover birth control as a preventative health service. Polls since the announcement have consistently shown Americans approve of the policy by a roughly 20 percent margin. [1] And birth control is widely used among women; 99 percent of women who have sex have used birth control at some point in their lives. [2]

But popular or not, the policy has engendered a controversy that for a moment threw the nation right back into the 1950s as the debate over contraception inexplicably continued for more than a month after the the policy announcement.

The Obama campaign acknowledges that gaining the support of women is critical to the President’s re-election bid. Historically, few Democrats who lose the female vote go on to win the White House. The President did receive an initial boost from the conflict. A New York Times/CBS News poll conducted in February found the President’s approval/disapproval rating among women had jumped to 53/38, up from 48/46 in January. [3] But some of that momentum seems to have cooled in March as Republicans refocus attention on rising gas prices. [4]

The debate, bizarre as it seems on the surface, has a deeper tension. It invokes several constitutional issues, including the right to privacy, the civil rights of women and religious freedom. The right to privacy, considered settled case law by some, has been under attack for decades by conservatives who see it as an overreach of judicial power. These attacks will likely continue into the foreseeable future since the right to privacy is the underpinning for both the right to birth control access and the right to an abortion.

Preventative Care, Birth Control and the ACA

This battle over birth control access has its roots in the Affordable Care Act (ACA) that passed two years ago this month. The ACA requires insurance companies to provide a basic level of preventative care in all new policies. According to the Obama administration, too many Americans were and still are going without preventative care. Giving everyone access to preventative care service with no cost sharing (no out of pocket costs), the administration claims, would lead to a healthier population and ultimately lower health care costs for everyone. [5] However, when the ACA passed, precisely what constituted preventative care was left to be determined by Congress as the law was implemented over time.

In 2011, the Institute of Medicine released a report outlining an array of preventative health services for women. The report recommended that these services be included in all health insurance policies at no out of pocket cost to the policyholder. The services include a range of care from annual cervical cancer screenings, mammograms, HPV and other disease screening to counseling for domestic violence and counseling for and dispersion of birth control. [6]

Congress adopted the recommendations in August of 2011, making coverage of women’s preventative services a requirement under the ACA. Giving women access to birth control made sense from both a public health and an economic standpoint. A brief released last month by the Brookings Institute found that every dollar spent on family planning programs and services ultimately saves taxpayers between $2 and $6, well over a 100 percent return on investment. [7] And that is without taking into consideration the money saved in terms of social programs when children are planned and born at an ideal time in their parents’ lives.

If all of this happened in August, why, then, the sudden brouhaha over birth control that has remained a persistent national issue over the past month?

In early February, President Obama confirmed that, yes, his administration viewed birth control as a preventative health service and that all employers, with few exceptions, would be required to offer birth control coverage as a part of their employee health plans. The mandate applied to religious institutions, like Catholic hospitals and universities, that provide services and employment to the general public regardless of religious affiliation. Purely religious institutions, such as churches, are exempt from the rule, as was the case already in many states.

The birth control coverage mandate was, and continues to be, very popular among a wide swath of the public. In a Fox News poll, respondents favored “requiring employer health plans to cover birth control for women” by a margin of 61 to 34 percent. [8] But, President Obama faced an immediate, sustained campaign against the rule from predictable right-wing sources as well as from Catholic bishops and some Democratic leaning Catholic constituents. To the despair, if not the surprise, of many liberals, President Obama indicated a willingness to compromise with this vocal minority. But in the end, the compromise maintained the spirit and real world effect of the original policy. The mandate for employers to cover birth control remained in place, but insurers would pick up the cost if a religious school or hospital objected to the plan.

The issue could have stopped there. Democrats were for the most part happy with the compromise. Insurance companies, who recognize that the cost of covering contraceptives is much less than the cost of covering pregnancy and childbirth, agreed. But Republicans, eager to push a social issue in the face of an election year and an improving economy, grabbed onto birth control and ran with it.

Republicans framed the matter as one of religious freedom. No employer, they argue, should have to cover a health service that conflicts with his or her personal values.

Supporters of the birth control mandate claim that this position ignores the rights of individual employees who need access to preventative health services. While there is an argument to be made about the legitimacy and value of conscience clauses, the freedom of the individual to control his or her life and health care decisions should win out.

Women in their 30s and 40s, a critical voting demographic, do not remember a time when contraception was unavailable. The right to family planning for all women, married or unmarried, is an accepted part of daily life. The perception that politicians, overwhelmingly men, are somehow hostile to this right is easily framed by Democrats as an attack on women’s autonomy. This idea was embodied by a House of Representatives’ hearing on birth control and religious freedom, organized by Darrell Issa (R, CA), that featured a nearly all-male panel. A picture of the row of men, all picked to testify on an issue that decidedly involves women went viral, and stands as an example of the perceived anti-woman bias to the debate. [9] Representative Nancy Pelosi (D, CA) weighed in, asking what happened to the women. Representative Carolyn Maloney (D, NY) accused Issa of trying to “…roll back the fundamental rights of women to a time when the government thought what happens in the bedroom is their business.” [10]

Congressional Action

Republicans in Congress responded quickly to calls from party leadership to craft legislation addressing the birth control issue. While jobs bills and budget proposals languished in committee, Senator Roy Blunt (R, MO) introduced an amendment to a highway bill that would have allowed employers to opt out of the federal coverage mandate on the basis of “religious beliefs and moral convictions.” The broadly written amendment went beyond contraceptives and would have allowed employers to block coverage of any health service deemed objectionable. It was defeated along party lines 51 to 48. [11]

House leadership responded immediately to the vote, claiming they would not let the defeat stand. House Speaker John Boehner confidently said, “I think it’s important for us to win this issue,” he said. “And there are a lot of ways to do that… We have a couple in the House. It’s matter of how we proceed.” [12]

The House seemed poised to easily pass the Respect for Rights of Conscience Act introduced by Representative Jeff Fortenberry (R, NE) and boasting 220 co-sponsors. [13] On International Women’s Day a group of Democratic Representatives sent a letter to Speaker Boehner asking him not the bring the bill up for a vote. [14] The letter was considered a “hail Mary”.

Then, suddenly, the tide shifted.

Despite their efforts, Republicans failed to effectively brand the birth control coverage mandate as a religious liberty issue. Women, including Catholics and conservatives, like access to contraception. And they disliked the Blunt amendment. The Democratic party, for once, effectively framed the controversy correctly as a women’s rights issue.

Then, as a debate many people thought was concluded 50 years ago continued to drag on, conservative pundits started saying stupid things. Republicans were unable to control the rhetoric coming from party surrogates and their own presidential candidates. Careless talk turned the discussion into an ugly narrative of judgment, shame and contempt for women who dare to exercise their sexuality. An old, bad joke about Aspirin resurfaced with a vengeance. Rush Limbaugh called the majority of women in the U.S. sluts by proxy, only issuing an anemic apology after three days of sustained controversy. Congress appears (again) to be unable to pass a budget, and bringing an unpopular bill to the floor for an easy vote seems, appropriately, trivial in comparison.

Currently, the Respect for Rights of Conscience Act is on hold in the Energy and Commerce Committee where it is likely to stay for the foreseeable future. Republicans have now turned their attention to more favorably polling issues.

Birth Control and the Right to Privacy

Birth control has been legal on a federal level since 1965, when the Supreme Court decided the landmark case, Griswold v. Connecticut. But Griswold is known for much more than birth control. In its opinion, the Court codified for the first time a general right to privacy as derived from the Constitution. [15]

In 1879, Connecticut passed a law making it illegal to use any drug or other device to prevent pregnancy. It was also illegal for doctors to provide birth control or even to distribute information about birth control methods. In the early 1960s, the law was still on the books, but support for birth control use had grown substantially.

In 1960, a coalition of women filed suit challenging the Connecticut law on the basis that they needed access to birth control for health reasons. The state ruled against the women who appealed to the Supreme Court. The Supreme Court found that no real harm could be proven, since none of the women had actually been arrested or fined as a result of birth control use.

Planned Parenthood executive director Estelle Griswold and Yale professor Dr. C. Lee opened a clinic with the express purpose of violating the law and suffering legal consequences. Both were arrested just nine days after opening their clinic. The Connecticut Supreme Court upheld the conviction, and Griswold appealed to the Supreme Court. This time, the Court sided with Griswold, striking down the Connecticut law as unconstitutional. [16]

The Griswold case established a limited “marital right to privacy” that was later extended to cover all individuals, married or unmarried, in the case Eisenstadt v. Baird. [17] In the 7-2 Griswold decision, the justices, although in agreement as to the outcome, were not united in their reasons for establishing the right to privacy. Justice James Douglas, who wrote the opinion for the Court, saw the right as emanating from the “penumbras” of the Bill of Rights. Implied rights to privacy in the First, Third and Fourth Amendments created a “zone of privacy” into which the state could not intervene. [18]

Other justices relied on the Ninth Amendment’s reference to “other rights retained by the people” and the liberty clause of the Fourteenth Amendment. The liberty clause prohibits states from depriving “any person of life, liberty, or property, without due process of law.” [19]

The right to privacy, as outlined by Griswold and subsequent decisions, is relatively young in constitutional terms. But it is a right that evokes a passionate defense from many, who see it as an essential civil right and barrier against government intrusion into personal matters.

The Constitutionality of Conscience Clauses

In contrast to the right to privacy, which emanates from the Bill of Rights, the right to religious freedom is plainly stated in the First Amendment. But it must still compete with other rights, which creates tension when considering the constitutionality of conscience clauses.

Both sides in the birth control debate claim the First Amendment supports their case relative to conscience clauses. The United States Conference of Catholic Bishops believes that the administration’s exemption from the coverage mandate is too narrow, infringing on the employer’s First Amendment right to freedom of religion. All religiously affiliated institutions should be able to opt out due to moral considerations, they claim. But groups like the ACLU, insurers and women’s groups argue that conscience clauses, which would allow employers to opt out of coverage for their employees, interfere with a woman’s First Amendment right to make beneficial decisions based upon her own individual beliefs. [20]

There is limited case law concerning the issue of conscience clauses. Courts in two states, New York and California, have upheld the constitutionality of only narrowly written exemptions, similar to those in the ACA. The Supreme Court has also heard cases in which it considered the free exercise clause in the context of competing rights. The Court has, in several decisions, held that the right to free exercise of religion does not exempt individuals from neutral, generally applicable laws. Sarah Lipton-Lubet, Washington Counsel for the ACLU, argues that since the ACA preventative care coverage mandate applies to all employers and all newly issued insurance policies, it meets the test of being both neutral and generally applicable.

Lipton-Lubet says, “Expanding the exception would allow employers to impose their faith on employees, regardless of those individuals’ own beliefs. That’s just wrong on so many levels. There is no constitutional problem with requiring coverage of contraception. Allowing those women who need access to contraception to have it is not an infringement on anyone’s religious liberty…People of many faiths work at religiously affiliated hospitals and social service agencies; they know what’s best for themselves and their families – whether and when to use contraception is a personal choice.” [21]

No right exists in a vacuum. The right to religious liberty, if taken too far, can cause real harm to women who are subsequently unable to make personal choices about their own health and freedom.

Women have been fighting for decades, if not centuries, to achieve parity in society with their male counterparts. Every right that women have won, from the right to vote to the right to equal pay relies on women having full autonomy with which to exercise that right. A woman’s ability to control her own fertility and decide when or if she wants to have children is critical to this autonomy. Without full autonomy, women are still at the whim of others (yes, often men) when deciding whether to attend college, devote time to a career, have children and generally exercise the right to life and liberty.

With legislation to repeal the birth control coverage mandate defeated in the Senate and unlikely, at least for now, to see a vote on the floor of the House, the birth control debate might be seen historically as much ado over a political miscalculation. Or, it may be seen as a pivotal turning point in the President’s bid for a second term, a defining moment in which the campaign consolidated critical female support. With the Supreme Court will soon take up the constitutionality of some provisions of the ACA, health care will likely remain a campaign issue throughout the summer. Republicans may shift their focus away from birth control, but if the past is any indication, hyperbole will remain high, and the rhetoric is unlikely to cool.



















[19] Id.


[21] Id.
