On June 7, 1965, the U.S. Supreme Court announced a critical, life-changing legal victory for women in the United States. In Griswold v. Connecticut, the Court ruled that married women have a constitutional right to privacy that allows them to obtain contraception. Ironically, forty years later, women are still fighting to exercise that right: in courtrooms, legislatures, and even pharmacies, obstacles to reproductive freedom continue to this day.
Mrs. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, fought long and hard against Connecticut’s outmoded laws banning the sale or use of birth control. The Connecticut ban, enacted in 1879 under the sponsorship of Connecticut state legislator P.T. Barnum of Barnum & Bailey Circus fame, had withstood years of legislative and legal challenges. Finally, in November 1961, Mrs. Griswold and her colleagues challenged the ban directly, opening a clinic in New Haven that offered family planning counseling and services. For this act of civil disobedience, Griswold and her colleague, Dr. Lee Buxton, a Yale obstetrician, were arrested, convicted and fined $100 each. Four years later, their appeal led to the Supreme Court victory that for the first time recognized a constitutional right to privacy in matters of marital intimacy and reproduction.
Griswold led the way for a string of other decisions in which the right to contraception was extended to unmarried women (Eisenstadt v. Baird, 1972) and to minors (Carey v. Population Services International, 1977), from contraception to abortion (Roe v. Wade and Doe v. Bolton, 1973), and from reproductive rights to sexual rights (Lawrence v. Texas, 2003), where Justice Kennedy wrote of “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
These decisions – and others that rely on and expand them – have been fundamental to advancing human rights in the United States. For only with the freedom to decide whether, when, and with whom to have sex, and whether, when and with whom to have children, can other human rights – economic, social, cultural, and political – be fully realized.
However, in celebrating the Griswold decision this month, we must acknowledge that this victory was always incomplete and is now at great risk.
For poor women, the legal rights established by Griswold and its progeny have always been limited. In 1980 the Supreme Court upheld the Hyde Amendment – a ban on the use of federal funds for abortions other than those necessary to save a woman’s life (Harris v. McRae, 1980). In this and a number of subsequent decisions, the Court has asserted that while the government cannot interfere with constitutionally protected rights, there is “no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual” (Webster v. Reproductive Health Services, 1989).
Without this “affirmative right” poor women have had reproductive rights on paper, but little ability to exercise those rights in practice. Public funding for contraception is woefully inadequate, and for abortion it is almost nonexistent. For example, despite the growing numbers of women in need of subsidized family planning services, Congress has failed to increase funding for the Title X family planning program (funding has decreased 58 percent since 1980 when adjusted for inflation) and is now poised to make significant cuts in funding for Medicaid, the largest source of financing for family planning for poor women. With regard to abortion, thanks to the Hyde Amendment and other restrictions, as many as one in three poor women are now forced to carry unwanted pregnancies to term. As for those women who want to be parents, their reproductive rights are limited as well. Despite incessant rhetoric about encouraging women to choose childbirth over abortion, policymakers at the state and federal levels continue to cut funding for the programs women need – health care, child care, education, housing, employment and training – to care for their children once they are born.
Even for women who do not need government subsidies for health care, access to birth control has been limited – by health insurance plans that fail to cover contraception, by hospitals and managed care systems that refuse to cover basic reproductive health services from sterilization to HIV/AIDS counseling to emergency contraception, and, most recently, by pharmacists who refuse to fill prescriptions for birth control pills and emergency contraception. It is almost inconceivable that forty years after Griswold, individual pharmacists are asserting that they should be allowed to override constitutional rights by deciding what kinds of contraception can be used and by whom. Indeed, the number of incidents of pharmacists refusing to fill prescriptions recently led Illinois Governor Rod Blagojevich to issue an emergency ruling that requires all pharmacists to fill prescriptions with, in his words, “No delays, no hassles. No lectures.”
This month is a time to celebrate Estelle Griswold by recommitting ourselves to fulfilling the promise of Griswold, not just for the well-to-do, but for all women. Let’s start by going to the pharmacy, and doing what American women before 1965 did not have the right to do: buy a package of condoms, fill a birth control prescription, ask a pharmacist for advice about how to prevent unintended pregnancy. In short, remind yourself and the pharmacist that access to contraception is a fundamental constitutional right, and that no one should be allowed to interfere with it. Then, become an activist for reproductive justice. Write to your senator or representative in Congress, your state policymakers, your local newspaper. Remind them that the freedom to decide whether, when, and with whom to have sex, and whether, when, and with whom to have children, is fundamental to women’s rights and that the government has an affirmative obligation to ensure these rights for all women, regardless of economic status. Demand that policymakers act now to ensure women’s rights and reproductive freedom with “No delays, no hassles. No lectures.”
Shira Saperstein is the deputy director of the Moriah Fund and an adjunct fellow at the Center for American Progress.