Forty-nine years ago this week, the nine men on the Supreme Court heard arguments that would profoundly affect women's access to birth control. By 21st-century standards, the oral arguments in the 1965 case Griswold vs. Connecticut suggest that most of the justices were either uninformed about contraceptive methods or uncomfortable discussing them. When the court returns to the subject of birth control this week, it is critical that the justices understand the complexity of contraception and its role in women's lives.
The Connecticut law at issue in Griswold criminally punished any person who "uses any drug, medicinal article or instrument for the purpose of preventing conception." The case arose when the medical director and executive director of Planned Parenthood of New Haven, Conn., were convicted of assisting married couples in the unlawful use of birth control.
Oral arguments in Griswold at times verged on incoherence because the justices were embarrassed to discuss methods of contraception. At one point Justice Hugo Black asked the lawyer for the Planned Parenthood directors: "Is the device which you are talking about here described in the record?" He hastened to add: "I won't ask you to describe it." The transcript notes "[laughter]" in the courtroom. No method of contraception was named out loud by the advocates or any of the justices.
The resulting confusion about methods of birth control mattered. It was said that "the devices" were "commonly and notoriously sold in Connecticut drugstores." That led some justices to think that if contraceptives were available despite the law, nothing much was at stake in the case. But only condoms were sold openly. Condoms could escape the ban on devices "for the purpose of preventing conception" by being labeled for another purpose: "the prevention of disease." But that claim could not justify the use of other methods of avoiding pregnancy — methods no one dared mention in the courtroom.
Other methods of contraception that had been developed by then included oral contraceptives, intrauterine coils, diaphragms and cervical caps. All were significantly more effective than condoms in preventing pregnancy, and they had the additional benefit of being under the control of women. Their use, however, required the involvement of physicians.
Many wealthy women in Connecticut had access to these more reliable forms of birth control because they could afford physicians who, in the privacy of their offices, could simply violate the law to serve their patients. When Planned Parenthood sought to open a clinic to make these methods available to lower-income women, state prosecutors invoked the law to shut down the clinic.
Ultimately, the court concluded that the Constitution protects the decision of a married couple to use birth control. Had more of the justices understood the role of different forms of contraception, more might have joined Justice Byron White's additional equality argument that the law effectively denied to "disadvantaged citizens of Connecticut, those without either adequate knowledge or resources to obtain private counseling, access to medical assistance and up-to-date information in respect to proper methods of birth control."
The cases being heard on Tuesday also implicate equality of access to effective methods of family planning. At issue are challenges to the Affordable Care Act's requirement that health insurance policies cover without cost to the patient all methods of birth control for women approved by the Food and Drug Administration. An exemption is being sought by directors of for-profit corporations who hold a religious belief that they would be complicit in sin if the health insurance policies provided to their employees included coverage of birth control methods the bosses consider immoral.
