Today, the U.S. Supreme Court will hear Zubik v. Burwell, the second of this term’s major cases involving women’s reproductive rights. Until now, the Texas abortion case, Whole Woman’s Health v. Cole, has stolen the show. But this second challenge is an equal if not greater threat to women. In earlier cases nonprofit religious charities, schools, colleges, and hospitals challenged the Affordable Care Act’s (ACA) mandate to supply contraception to their female employees. The Obama administration came up with a single-page form to opt out of the mandate. Now the religious organizations are objecting to the exemption. They argue that the mandate itself — and the government’s attempt to offer a way out — violate the Religious Freedom Restoration Act.
The government has tried three times to fashion an accommodation for non-profit religious institutions that have faith-based objections to providing contraceptives for their employees. The current attempt requires the institution simply to notify the government of its objection. This notification does not make the employers part of the chain, as some argue. It returns that responsibility to the ACA and the insurance companies.
Americans support the birth control mandate of the ACA by nearly two to one. Yet, of all provisions in the act, the birth control mandate has attracted the greatest number of legal challenges.
Many of the employers who refuse to abide by the birth control mandate do so out of sincere religious scruples. Others aren’t satisfied with no longer having to provide contraceptive health care — they’re determined to prevent their employees from getting subsidized birth control from any source. This is, simply, discrimination against women.
Just listen to some of the opponents. When Sandra Fluke spoke out in favor of the contraceptive mandate, Rush Limbaugh branded her a “slut” and a “prostitute.” Former presidential candidate Ben Carson accused women who demanded reproductive rights of being “riled up” and warned that men had to re-educate them on their role as women.
More than 99% of sexually active women between the ages of 15 and 44 use birth control, including 89% of Catholic women and 90% of Protestant women. Yet, according to the American College of Obstetricians and Gynecologists, lack of insurance coverage prevents many of them from choosing the contraceptive most appropriate for their needs. The college says in its brief, “Pregnancies that are too frequent and too closely spaced, which are more likely when those pregnancies are unintended, put women at significantly greater risk for permanent physical health damage.”
The Centers for Disease Control and Prevention calls family planning one of the greatest public health achievements of the twentieth century. The benefits of smaller families and longer birth intervals, they maintain, accrue not only to women but also to infants and children. Unfortunately, however, more than half the women between the ages of 18 and 34 who want to use birth control struggle to afford it.
This current challenge to women’s health is the latest salvo in a war that many thought they won long ago. In 1916, Margaret Sanger opened the first birth control clinic in America. She was driven to it after seeing roughly a hundred women line up outside the five-dollar abortionist’s on New York’s Lower East Side every Saturday night.
Sanger, one of eleven children, whose mother died at fifty and whose alcoholic dreamer of a father lived to eighty-eight, was determined to alleviate the hardship. Her solution was contraception. Birth control, a term she helped coin, would make abortion obsolete.
The clinic Sanger opened in a teeming tenement-filled section of Brooklyn was illegal. At the time, contraception could be prescribed only by doctors, only to men, and only to prevent the spread of disease. Women might die in childbirth or from botched abortions, as many did, especially in the slums, but men had to be protected from the wages of their indiscretions.
The clinic was raided, as Sanger knew it would be, and Sanger went to jail. It wasn’t her first encounter with the law. Two years earlier, in 1914, she’d fled the country after being indicted under the Comstock laws for sending pornography through the mails. The pornography in question, a magazine called The Woman Rebel, provided no contraceptive information. It merely encouraged women to demand it.
The confrontation was far from her last. Her meetings were repeatedly raided. She was locked out of halls and harassed by the police, often acting at the behest of the Catholic Church. In 1929, when civic authorities in Boston tried to silence her, she stood on the stage of Ford Hall with a gag over her mouth while Harvard historian Arthur Schlesinger, Sr. read her statement.
The fight for women’s right to control their own bodies made as many strange enemies as bedfellows. Other feminists, the suffragists, kept their distance. They feared association with the forbidden topic of women’s sexuality would taint their struggle for the more respectable goal of women’s suffrage.
Like the current battle against women’s reproductive rights, the war against Sanger was not only puritanical, it was also punitive. Who knew what would happen if women were as free to have sex as men were? Some men thought they did know.
Frustrated by her lack of success, Sanger decided to lobby congress. The responses of various legislators were instructive. Representative Andrew J. Montague of Virginia argued that the removal of women’s fear of pregnancy would sound the death knell for women’s virtue; women, he thought, must not be allowed to adhere to the same standard as men. Illinois Senator William H. Dieterich stated that he wasn’t yet ready “to teach our children to become whores.” A few admitted they saw her point but sponsoring a bill having to do with sex would be committing political suicide.
Sanger soldiered on. During World War II, the military turned a deaf ear to her plea to give members of the Women’s Army Auxiliary Corps preventive measures against pregnancy, though it gave G.I.s. preventive measures against disease. The double standard she’d started out fighting still prevailed.
In wasn’t until 1965, more than two decades later, that the Supreme Court ruled in Griswold v. Connecticut that a constitutional right to privacy prohibited states from denying birth control to married couples. It took another seven years for the court to guarantee an unmarried woman’s right to contraception, a delay that suggests the battle against birth control has as much to do with male perception of female morality as with women’s health or rights.
In 1967, when Colorado passed the first slightly liberalized abortion law, an official of the State Medical Society reassured the public that the statute “wasn’t written for the secretary in Chicago who went out one night and had a good time.” Echoes of Rush Limbaugh and Ben Carson.
It would be nice to believe that these statements uttered over almost a hundred years are the rants of a small band of misogynists. But the number of challenges to the contraception clause of the ACA indicates that the anger against women is widespread.
As Margaret Sanger knew a century ago, without the ability to decide whether and when to have children, women are not equal members of society. They cannot plan their education, their careers, or any aspect of their lives. Frequently pregnant, they are dependent on men. Perhaps that is what the men, and women, who are using their religious scruples to block contraceptive coverage, have in mind.