Contraception as a Sex Equality Right

Abstract

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the fiftieth anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception. In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would decide in the next decade—perhaps even more so. Griswold is conventionally understood to have secured liberty for women. But, we argue, the right to contraception also secures equality for women, as Ruth Bader Ginsburg saw clearly in the 1970s and as the Court eventually would explain in Planned Parenthood v. Casey. Because Griswold was decided before the sex equality claims and cases of the 1970s, the Griswold Court did not expressly appeal to equality values in explaining the importance of constitutionally protected liberty—as, for example, the Casey Court did. Yet as some contemporaries appreciated, in protecting decisions concerning the timing of childbearing, the Griswold Court was protecting the foundations of equal opportunity for women, given the organization of work and family roles in American society.