By David Rosen | 29 June 2016
The birth-control wars have reached a new level of contestation. On Monday, June 27th, the Supreme Court struck down a Texas law – Whole Woman’s Health v. Hellerstedt – that sought to restrict a woman’s right to an abortion and other birth-control medical services.
The Texas law required women’s abortion-care providers to meet the same building standards as ambulatory surgical centers and that doctors who perform abortions must have admitting privileges at nearby hospitals. The decision could apply to similar restrictive laws being imposed in dozens of other states.
This decision comes only a month after a May decision – Zubik vs. Burvell – in which the Court split four-to-four over another Texas birth-control law involving whether the Affordable Care Act required religious employers to cover contraception coverage.
The decision concerned a further extension of the Court’s 2014 Hobby Lobby decision that affirmed the 1993 Religious Freedom Restoration Act and blocks Obama Care from applying to “religious” employers. The Act requires employees insurance programs to cover contraceptives among pregnancy prevention services at no extra cost to the employee as some of these birth-control methods can be expensive (e.g., some intrauterine device can cost $1,000).
These decisions will further fuel the increasingly contentious 2016 presidential campaign, with the two presumptive candidates likely becoming even more combative. Hillary Clinton has been a long-term “feminist,” supporting women’s issues, including birth control and abortion rights. She championed the June Court decision.
In 1999, Donald Trump considering himself “very pro-choice” and, according to some sources, supported partial-birth abortion. Since then, he’s moved further to the right. As he reportedly said, “I’ve evolved on many issues over the years. And you know who else has? Is Ronald Reagan evolved on many issues. And I am pro-life. … And I am very, very proud to say that I am pro-life.”
These two Court decisions are but the latest in a long, long history of struggles waged by women (and some men) to secure birth control rights for women. They reflect the ongoing battle against the Christian right’s efforts to preserve “traditional” values, notably patriarchy. They are examples of how the “culture wars” are now being played out in their most vindictive manner targeted at the most vulnerable, poor and small-town women and girls living in conservative states.
The battle over birth control – and a woman’s right to control her body – has been fought out over the last two centuries, but especially the half-century since the contraceptive pill was introduced (1960) and the Roe v. Wade decision (1973). Birth control not only offers a woman greater power over her life – her body and her pregnancy – but also provides a means by which she can enjoy greater erotic pleasure, an experience separate from procreation.
On October 16, 2016, the U.S. will celebrate the 100th anniversary of the opening of the nation’s first birth-control clinic. A century ago, Margaret Sanger and her sister, Ethel Byrne, both nurses, along with Fania Mindell, a receptionist who spoke Yiddish, opened the clinic on Amboy Street in the predominantly immigrant, Jewish neighborhood of Brownsville, Brooklyn. It dispensed birth control literature, provided helpful information and supplied contraceptive devices (e.g., pessaries, condoms and douching solutions) to the predominately immigrant and working-class women of the neighborhood.
The clinic operated for 10 days, serving some 488 women, before the police closed it down. Sanger and Byrne were arrested for violating what was known as “Comstock Law.” The sisters were found guilty and each served 30-days in jail; Byrne went on a hunger strike and was force-fed.
The law was named after Anthony Comstock and was formally known as “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” It singled out birth control, targeting “any article or thing designed or intended for the prevention of conception or procuring of abortion.” To enforce the law, Comstock was appointed a special officer of the U.S. postal system and given the power to seize what he labeled as “obscene materials” as well as arrest those he identified as pornographers and birth-control advocates. It was the most draconian “anti-obscenity” law ever enacted in U.S. history and remained in force until the 1960s; in 1963, Attorney General Robert Kennedy prosecuted Ralph Ginsberg over Eros magazine for violating the Comstock Law.
Nine decades earlier, in 1830, the feminist, Francis Wright, along with Robert Dale Owen, son of utopian Robert Owen, opened the Hall of Science in a converted church on 859 Broome Street, New York, where hundreds regularly attended their lectures. According to one historian, “the first books of reform [female] physiology and birth control were openly distributed.” So threatening was her message that she was denounced as the “Priestess of Beelzebub” and the “Red Harlot of Infidelity.” Walt Whitman attended her lectures and fondly recalled, “I never felt so glowingly toward any other woman. … She possessed herself of me body and soul.”
Comstock repeatedly battled feminists and birth-control advocates. In 1878, he targeted New York’s most notorious birth-control supplier, “Madame Restell.” Born Ann Trow in England and now calling herself Ann Lohman, she made a living as a self-proclaimed physician selling medicinal cure-alls that addressed “female troubles”; she was dubbed “the Wickedest Woman in New York.” Operating out of an elegant office at Fifth Avenue and East 52nd Street, she sold pills and other products to prevent pregnancy and induce abortion; these concoctions included pennyroyal, savin, black draught, tansy tea, oil of cedar, ergot of rye, mallow and motherwort. Arrested by Comstock for possessing pamphlets about birth control and some “instruments,” she committed suicide rather than face a trial and likely prison sentence.
In 1902, Comstock went after the feminist writer, Ida Craddock, author of the marriage manual, The Wedding Night. Initially tried in Chicago for obscenity, she was convicted; the book was deemed so “obscene, lewd, lascivious, dirty” that the jury was prohibited from seeing it. Upon release, Comstock arrested her for sending the book through the U.S. Mail; she was convicted and faced a 5-year prison. On October 16, 1902, the day before reporting to Federal prison, Craddock committed suicide by slashing her wrists and inhaling natural gas from the oven in her apartment. She left a suicide note condemning Comstock.
Birth control fundamentally changed during the 20th century. Repeated Supreme Court decisions, technological innovations and the work of Sanger and others remade American sexual culture.
In 1930, Sanger provoked a major confrontation over a woman’s right to birth-control materials, this time as a free speech issue. She “illegally” imported Japanese condoms, a violation of the Comstock laws. In 1936, the Supreme Court, in U.S. v One Package of Japanese Pessaries, struck down the prohibition because the material, as information and devices, served medical purposes, protecting the patient’s life. It ruled that items used to protect the health of a patient did not fall under federal Comstock obscenity laws.
Three decades later, the introduction of contraceptive pill in 1960 and a Supreme Court decision invalidated a Connecticut version of the Comstock Law, Griswold v. Connecticut (1965) that prohibited using “any drug, medicinal article or instrument for the purpose of preventing conception,” was a violation of the “right to marital privacy.” From Griswold, it was a steppingstone to Roe.
Historically speaking, the Christian right is fighting a last ditch effort in the birth-control wars targeting abortion and the healthcare of poor and working-class women. Looking back to the bitter days of the Comstock Laws, its clear that much has changed. According to the Guttmacher Institute, nearly all women aged 15–44 who have ever had sexual intercourse have used at least one contraceptive method and nearly two-thirds (62%) of all women of reproductive age are currently using a contraceptive method.
The Internet is further transforming access to birth control. A handful of website and apps are making it easier for women to secure both prescription and non-prescription products, including pills, patches, rings and morning-after pills. Among those offering on-line services are Planned Parenthood, Lemonaid, Prjkt Ruby, Nurx and Virtuwell.
Unfortunately, in 2011, nearly half (45% or 2.8 million) of the 6.1 million pregnancies in the U.S. were unintended, down from the 51 percent in 2008. The rates of unintended pregnancy are declining among both poor and higher-income women. Between 2008 and 2011, the rate for women with incomes below the federal poverty level fell 18 percent while for higher-income women it decreased by 20 percent.
Hopefully, the most recent Supreme Court decision and Clinton’s election – followed by the likely appointment of a more “liberal” Justice to the Court – will mark a fundamental shift in support of abortion rights and, finally, drive a stake in the heart of reactionary Christian politics.
David Rosen is the author of Sex, Sin & Subversion: The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015). He can be reached at firstname.lastname@example.org; check out www.DavidRosenWrites.com.
Eric Foner on Margaret Sanger’s fight for birth control
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