Legalese — Medical Privacy and Birth Control

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In my last column, I wrote about how recently it was that women had to get a man’s approval before getting something as basic as a credit card.  That article got a lot of responses from many readers who were old enough to remember having to get approval from men to do basic things like get a job or buy a refrigerator, or who remember their mothers doing so.

Because of the response to that column, I thought I’d talk about another common thing we take for granted as a right that hasn’t been around all that long: the right to access to birth control.

It wasn’t until the mid-1960s that you could legally speak with your doctor about birth control in all fifty states.  In the early 1960s, there was a law in Connecticut that said, “Any person who uses any drug medicinal article or instrument for the purposes of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”  A different section of the law said, “Any person who assists, abets, counsels, causes, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”  These two sections together, in plain English mean that it is a misdemeanor for you to use anything that would prevent conception and if anyone helps you prevent conception, even by so much as giving you advice about the rhythm method, they are punished in the same way.

Crazy, right?

So Ms. Griswold, the director of the Planned Parenthood clinic in Connecticut, and a doctor from Yale University who worked at the clinic, publicly violated this law and allowed themselves to be arrested under this law so that they would have standing to challenge it.  It is notable that they were speaking to married couples.

The Constitution does not specifically say that people have the right to use birth control, nor does it specifically say that people have the right to talk to their doctors about whatever they want.  Nonetheless, the Supreme Court of the United States said, in Griswold v. Connecticut in 1965, “The First Amendment has a penumbra where privacy is protected from governmental intrusion.  In like context, we have protected forms of ‘association’ that are not political in the customary sense, but pertain to the social, legal, and economic benefit of the members.”

The decision to use (or not use) birth control, or what kind or method, or whether to discuss it with medical professionals is a private one, and as such, the Supreme Court decided that it was not something that the state court interfere with.  “The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.  And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.  Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’  NAACP v. Alabama 377 U.S. 288, 307.

In other words, the State of Connecticut isn’t trying to regulate trade here or some kind of commerce.  They are trying to police what goes on in the bedrooms of married people, and that kind of invasion of privacy is fundamentally against the privacy protections guaranteed by the constitution.

This seems kind of obvious from a 2019 perspective, but it wasn’t in 1965.  The decision was not unanimous.  It was only 7-2.  (Although the two dissenting Justices did note that they thought the law was unwise, they also thought it was constitutional.)

With HIPAA in place now, it seems stunning that speech between doctor and patient could be regulated.  But it was, and not all that long ago.

This article is being offered for informational purposes only, and the opinions contained herein are solely those of the author.  

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