Litigation Seeks to Turn Back the Clock on Contraception

Thursday, June 07, 2012

Archbishop of New York, Timothy Dolan
Originally posted by the Center for American Progress.

by Jessica Arons

June 7 marks the 47th anniversary of Griswold v. Connecticut, the Supreme Court ruling that determined the Constitution contains a fundamental right to privacy that includes the use of contraception. But almost half a century after that landmark decision, the courts are once again embroiled in litigation about contraception.

In 1965 the question was whether the government could ban the sale of contraception to married couples. Today the question is whether the government can require religiously affiliated employers to cover contraception in employee health plans.

That’s progress. Contraception has come a long way from being classified as a contraband possession—and is now a preventive health service deemed so vital that the Department of Health and Human Services has required that starting in August it be covered by all health plans without charging co-pays or other costs to the patient. It has gone from something used furtively (“Mad Men” fans will remember Peggy being lectured by her doctor not to become a “strumpet” after going on the pill) to something that enjoys widespread public support and that has been used by 99 percent of sexually active women.

This near-universal acceptance is what makes the current wave of lawsuits and legislation challenging the regulation so surprising and has most people asking, “What’s the big deal?” The big deal, according to the U.S. Conference of Catholic Bishops—who have spearheaded the charge against the Health and Human Services Department’s regulation on contraceptive coverage—is that requiring employers to cover contraception violates the religious liberty of those who object to birth control.

There are a few things to keep in mind about the conference’s arguments, however.

First, they think no employer—whether a nonprofit or a commercial enterprise—should have to cover contraception or any other health service, for that matter, if it is “contrary to the religious beliefs or moral convictions” of the employer. Lest you think I exaggerate, read the text of the Blunt amendment, which would have allowed any employer to refuse to cover any health service to which they objected for virtually any reason. It was introduced in February in response to the birth control regulation and failed to pass in the Senate by only three votes. You can also consult the roster of plaintiffs in the pending lawsuits, who run the gamut from universities and charities to a television station and an HVAC manufacturer.

Second, while they claim to only want to protect the religious liberty of employers who object to birth control, they have argued to the Obama administration that no health plan should be required to cover birth control, even when the plan sponsor has no religious or moral objection to covering it. Their reasoning is that contraception and sterilization:
…are not “health” services, and they do not “prevent” illness or disease. Instead, they disrupt the healthy functioning of the reproductive system, introducing health risks in the process; and they are designed to prevent pregnancy, which is not a disease.
This assertion, of course, is contrary to the overwhelming evidence that birth control has improved the health of women and their children, as well as the financial security of families.

The reality is that the Conference of Catholic Bishops and their allies are not merely seeking a reasonable accommodation for their religious beliefs—they are trying to impose their worldview on everyone else. Having failed to persuade any but the most faithful that using birth control is a sin, they are trying to use lawsuits, legislation, and the rulemaking process to browbeat the government into enshrining their version of morality into the law.

They may not be able to convince the government to go back to the days of banning contraception. But if they can get health plans to exclude contraception, employers to fire employees for using contraception, and pharmacists to refuse to fill prescriptions for contraception—all with impunity—that would be enough to cut off many women from access to modern methods of family planning and would turn back the clock on the advances women have made in economic, civic, political, and family life.

It is hard to imagine going back to the pre-Griswold era, when even married couples lacked the power to manage their fertility and plan their families. But just because it seems far-fetched doesn’t mean that there are those who won’t try to make it happen anyway.

Jessica Arons is the Director of Women's Health and Rights Program at the Center for American Progress.