Legal History of Contraceptives
Legal History of Contraceptives

As part of its 1873 anti-obscenity law, known as the Comstock Act, the US Congress prohibited the interstate transfer of any contraceptive medicines. The Act made the sale or possession within the US of “Articles of immoral Use,” such as birth control, and the dissemination of information about birth control a misdemeanor offense. In addition, those that tried to import from abroad or send such materials through the US mail would also be charged with a misdemeanor. Many states followed Congress’ lead and adopted similar laws prohibiting commerce in birth control.

The laws proved unpopular with proponents of birth control. In 1916, Margaret Sanger challenged a New York anti-obscenity law by opening a birth control clinic in Brooklyn, NY, and in the subsequent state criminal prosecution won the right for women to use birth control “for the prevention or control of disease.” At the federal level, the US Court of Appeals for the Second Circuit nullified a portion of the Comstock Act in 1936. In United States v. One Package, the court allowed the importation of contraceptives to a US doctor for use by her patients as birth control.

In the early 1950s, scientists explored creating a pill for contraceptive purposes and conducted various experiments to determine its effectiveness. Doctors Gregory Pincus and John Rock, funded by women’s rights activists Dr. Katherine McCormick and by Planned Parenthood, created a viable contraceptive pill and conducted the first successful human trials in 1954. The Food and Drug Administration approved use of the pill in 1957, but only as a treatment for menstrual disorders and not as a contraceptive. The FDA ultimately approved the use of the pill as a contraceptive in 1960, and it quickly became the preferred form of birth control in the US.

In 1965, the US Supreme Court provided a major victory for proponents of birth control in Griswold v. Connecticut. The court held a Connecticut law prohibiting the use of contraceptives by a married couple unconstitutional because it violated the right to privacy implicit in the US Constitution. Justice Douglas analyzed Griswold using the 14th Amendment’s substantive due process doctrine, recognized the fundamental right to privacy was binding on the states and held the state law unconstitutional after reviewing it under strict scrutiny. Griswold‘s holding did not extend beyond married couples, however, and only addressed the use, not the sale or manufacture, of birth control.

The court extended the holding of Griswold to include single persons in the 1972 case Eisenstadt v. Baird. In Eisenstadt, the court held a Massachusetts law that prohibited the use of contraception per se unconstitutional because it violated the rights of single persons under the 14th Amendment’s Equal Protection Clause. Justice Brennan stated “the rights must be the same for the unmarried and the married alike,” and claimed that the right to privacy from Griswold extended to unmarried individuals and that the state could not justify denying birth control to unmarried persons as consistent with the Equal Protection Clause. Eisenstadt and Griswold provided substantial support to the proponents of birth control, but they did not end the legal debate in the US over access to contraceptives.