Fifty years after Griswold v. Connecticut

Fifty years ago, on June 7, 1965, the Supreme Court issued the landmark Griswold v. Connecticut decision, which struck down a Connecticut law that criminalized the encouragement or use of contraception. Estelle Griswold, executive director of Planned Parenthood of Connecticut, and Dr. C. Lee Buxton, the organization’s medical director, had been arrested and fined $100 each for providing contraceptive advice to married persons. In a 7-2 decision, the Court ruled in their favor, finding that Connecticut’s law prohibiting contraception violated the right to marital privacy. In 1972, in Eisenstadt v. Baird, the Court extended this right to privacy to individuals as well as married couples.

In the five decades since the Griswold decision, millions of women have benefited from the ability to prevent and time pregnancies. In 1999, the CDC named family planning as one of its Ten Great Public Health Achievements of the 20^th Century, noting “Smaller families and longer birth intervals have contributed to the better health of infants, children, and women, and have improved the social and economic role of women.” The article describes the modern birth-control movement as starting in 1912, with Margaret Sanger playing a leading role. The era of modern contraception began in 1960, the authors explain, when the birth control pill and intrauterine device became available. The Griswold decision made it clear that women could legally obtain these technologies, while public programs launched in that era played key roles in allowing women to actually access contraception.

Five years after the Griswold decision, President Richard Nixon signed the Family Planning Services and Population Research Act, which created Title X of the Public Health Service Act. The Title X Family Planning Program, overseen by the HHS Office of Population Affairs, funds a network of 4,400 centers that provide high-quality, cost-effective family-planning services for approximately five million clients each year. In a 2013 piece in the Guttmacher Policy Review, Kinsey Hasstedt summarizes Title X’s impacts:

Title X prioritizes meeting the needs of those who are disadvantaged by their income or age. Centers receiving any Title X funds must deliver voluntary, confidential services to clients regardless of their income. Individuals with incomes below the federal poverty level must be provided care free of charge; others are assessed a fee according to an income-based sliding scale, with those at or above 250% of poverty charged the full cost of care. Because adolescents are often unable to draw on family resources or insurance while obtaining confidential care, they must be assessed fees based on their own income, instead of on their family’s. Additionally, Title X support enables providers to serve clients without insurance coverage and to consistently deliver the full package of services needed to promote effective and consistent contraceptive use—especially among those with specialized needs.

Now, more than 40 years after its inception, Title X continues to prove itself the relatively dollar-small but impact-strong heart of the national family planning effort. Seven in 10 women obtaining contraceptive care at a safety-net center receive those services from a Title X–supported site. The Title X network serves 4.7 million contraceptive clients annually, or one-quarter of women in need of publicly supported contraceptive services. Sixty-nine percent of these clients have incomes at or below the federal poverty level, and 64% are uninsured. The dramatic impact of Title X can be seen in individual states as well. For example, Title X sites serve nearly half of all women in need of publicly supported family planning services in Delaware and the District of Columbia.

We’re also celebrating the 50^th anniversary of the Medicaid this summer; President Lyndon Johnson signed the Social Security Amendments that established both Medicare and Medicaid on July 30^th, 1965. In the recent Women’s Health Issues (disclosure: I’m the journal’s managing editor) piece “Medicaid at 50: Marking a Milestone for Women’s Health,” Alina Salganicoff, Usha Ranji, and Lauri Sobel describe the program’s role in family planning:

In addition to supporting healthy pregnancies, federal and state Medicaid policies encourage access to family planning services. In 1972, family planning was added as a mandatory Medicaid benefit, with the federal government providing a monetary incentive for states to make family planning coverage as broad as possible by picking up 90% of costs, a considerably higher match than for other services. Family planning services are also exempt from out-of-pocket charges, and beneficiaries have “freedom of choice” to obtain confidential and sensitive family planning care from any Medicaid provider of their choice, even if it is “out of network.” This has become particularly important, because nearly three-quarters of reproductive age women on Medicaid are enrolled in managed care arrangements. Medicaid family planning expanded again in the early 2000s, when many states began seeking federal waivers to provide family planning services to women who no longer qualified for or lost Medicaid eligibility after having a baby or for other reasons. Today, Medicaid accounts for three-quarters of all publicly funded family planning services in the United States (Guttmacher Institute, 2012). More than one-half of states have Medicaid family planning programs, but some are questioning whether they are still needed in light of the ACA's broader Medicaid expansion, and a handful have eliminated their programs altogether (Molozanov, 2015).

One of the recent improvements in women’s access to contraception comes from the Affordable Care Act, which requires that insurers make all FDA-approved forms of contraception available without cost-sharing to all women with reproductive capacity. For privately insured women, their choices about contraception can now be based on what works best for them, not what’s most affordable. Researchers have found that when cost stops being an issue, more women choose the most effective forms of contraception – like IUDs, which can cost several hundred dollars.

The reach of this ACA provision has been reduced by the Supreme Court, though. In its Burwell v. Hobby Lobby decision, the Court ruled that the ACA’s contraceptive mandate places too great a burden on the religious beliefs of company owners who don’t want their employer-sponsored insurance plans to cover birth control. In a New Yorker piece addressing both the Griswold decision and the forthcoming Court ruling on marriage equality, Jill LePore contrasts the privacy-emphasizing legal strategy behind Griswold with the equality arguments that have won cases for same-sex marriage. Lepore writes:

Meanwhile, privacy doctrine left reproductive rights vulnerable. In Burwell v. Hobby Lobby, in 2014, the Supreme Court ruled that the religious liberty of a for-profit corporation, Hobby Lobby, had been infringed upon by the Affordable Care Act’s mandate that employers provide their employees with health insurance that covers contraception. (Similar religious-liberty claims have been and will continue to be made against same-sex marriage.) The Department of Health and Human Services argued against Hobby Lobby’s objections, but the Court found its argument wanting: “HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting ‘public health’ and ‘gender equality.’ ” Justice Ginsburg, in a sharply worded dissent, quoted the Court’s opinion in a 1992 reproductive-rights case, Planned Parenthood v. Casey: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Justices Breyer, Sotomayor, and Kagan joined in Ginsburg’s dissent, though, obviously, they failed to convince their brethren on the bench. Counterfactuals are famously foolish, not to mention futile. Still, it’s hard not to ask: If the Nineteenth Amendment had been a broadway in constitutional law, instead of a dead end, and if, beginning with, say, Trubek v. Ullman, reproductive-rights cases had proceeded from arguments for equality, rather than for privacy, would Justices Scalia, Alito, Kennedy, Thomas, and Roberts still have been able to rule in favor of Hobby Lobby?

The Griswold decision, Title X, Medicaid's family-planning policies, and the ACA's contraceptive mandate help women access effective forms of contraception. As a result, millions of women have been able to prevent and plan pregnancies, and that's paying off for maternal and child health and for women's lives as a whole. With some employers refusing to cover contraception in their insurance plans and states like Texas cutting funding to family-planning clinics, though, we still have a long way to go in assuring that all women can access effective contraception.