A Double Standard Falls

Not until 1972, a time within the memory of millions of Americans, did the U.S. Supreme Court unequivocally declare that men and women, whether married or single, have a right of access to birth control. The three decades between that decision and this week’s ruling from a federal court requiring health insurers to cover the cost of those contraceptives very nearly span the reproductive years of the baby-boom generation. Yes, we’ve come a long way, but oh, how slowly.

For most of the century before the court’s 1972 decision in Eisenstadt vs. Baird, federal and state laws banned the manufacture and sale of contraceptives, considering the devices and literature on their use as so much pornography. But in that decision Justice William J. Brennan held that the constitutional right to privacy established in earlier cases meant also that people have the right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Birth control went underground after it was outlawed by the 1873 Comstock Law and its progeny. But as often happens when lawmakers try to legislate morality, morality resisted. Married couples still wanted to limit the size of their families. Sexually active adults, married and single, still feared unwanted pregnancies and sexually transmitted diseases. So a birth control black market flourished, as did medical quacks, worthless folk remedies, birth control “failures” and, appallingly, death and injury among women.

Even when the courts finally declared diaphragms, pills, foams and condoms no longer contraband, a stigma stuck. Insurers wouldn’t cover their cost, and since the pill’s introduction in 1960, research on birth control has produced few major breakthroughs in safety and effectiveness.

Credit Viagra with doing what generations of public health and women’s rights advocates couldn’t. Margaret Sanger was jailed in the early 20th century just for passing out pamphlets on birth control. But when former Sen. Bob Dole went on television to extol the virtues of the anti-impotence drug a few years back, men clamored for prescriptions. Their insurers were only too happy to pay for the little blue pill even as they continued to deny coverage for the little pink (or green or yellow) ones their wives and girlfriends took to prevent pregnancy.

This week that double standard finally crumbled when a federal judge ordered a Seattle drug store chain to include female contraceptives in its health insurance coverage. Their exclusion, wrote U.S. District Judge Robert S. Lasnik, “creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate health care need uncovered.” It shouldn’t have taken this long.