Birth Control

• Author: Kenneth L. Karst
• Pages: 182-183

Page 182

The American birth control movement began in the early twentieth century as a campaign to achieve a right of REPRODUCTIVE AUTONOMY in the face of hostile legislation in many states. By the time that campaign succeeded in getting the Supreme Court to espouse a constitutional RIGHT OF PRIVACY which allowed married couples to practice contraception, there was not a single state in which an anti-contraception law was being enforced against private medical advice or against drugstore sales. GRISWOLD V. CONNECTICUT (1965) and its successor decisions thus did not create the effective right of choice; they recognized and legitimized the right, by subjecting restrictive legislation to strict judicial scrutiny and finding justifications wanting. (See FUNDAMENTAL INTERESTS.)

Contraception is only the most widely practiced method of birth control; others (apart from abstinence) are STERILIZATION and abortion. The Supreme Court, partly on the precedent of Griswold, recognized in ROE V. WADE (1973) a woman's constitutional right to have an abortion, qualified by the state's power to forbid abortion during the latter stages of pregnancy. The Court has had no occasion to recognize a person's right to choose to be sterilized, because the states have not sought to restrict that freedom. In any event the birth control movement has now won its most important constitutional battles; both married and single persons are free, both in fact and in constitutional theory, to choose not to beget or bear children.

"Birth control," however, has another potential meaning that is the antithesis of reproductive choice. The state may seek to coerce persons to refrain from procreating, either through compulsory sterilization or by other sanctions aimed at restricting family size. On present constitutional doctrine, the decision to procreate is "fundamental," requiring some COMPELLING STATE INTEREST to justify its limitation. (See SKINNER V. OKLAHOMA.) Although judicial recognition of such an interest is not inconceivable in some future condition of acute overpopulation, no such decision is presently foreseeable.

The constitutional right to choose whether to have a child or be a parent is properly rested today on SUBSTANTIVE DUE PROCESS grounds; "liberty" is precisely the point. Yet the interest in equality has also played a significant role in the development of these rights of choice. Justice BYRON R. WHITE, concurring in Griswold, pointed out...