What Will Americans Do When Birth Control is Illegal?

Are Republicans warming up the jail cells they want to put American women into who have the temerity to continue using birth control after the GOP’s bans take effect?

Image by Rosy / Bad Homburg / Germany from Pixabay

Last year, all three candidates in the Republican race for Michigan Attorney General proudly confirmed that they believed the 1965 Supreme Court case Griswold v Connecticut was “wrongly decided” on privacy grounds and that it was an infringement on a state’s right to imprison women, regardless of marital status, who use birth control.

Yes, birth control.

Each described himself as a “Christian” and implied his opposition to Griswold was grounded in his religious faith.

For over a hundred years in heavily Catholic (39% of the population) Connecticut it had been a crime punishable by imprisonment for a married couple to possess any form of birth control. Estelle Griswold, the head of Connecticut Planned Parenthood, sued to overturn the law and the Court agreed, saying a couple’s “right to privacy” in their own bedroom couldn’t be violated.

That was followed, in 1972, by the Supreme Court legalizing possession of birth control for unmarried men and women in their Eisenstadt v. Baird decision; it was also based on a reading of the Bill of Rights starting with the 14th Amendment’s Due Process clause that guarantees legal process before government can violate our privacy.

Starting with Griswold in 1965, the Court asserted every American’s right to privacy as a function of that clause (among others) in several cases.

The following year, 1973, the Court used that same rationale of “an individual’s right to privacy” over what goes on with, in, and about their own body to legalize abortion in Roe v Wade. The right to privacy argument also undergirds the Court legalizing gay relationships in Lawrence v Texas (2003) and gay marriage in Obergefell v. Hodges (2015).

The Michigan Republicans weren’t the only ones saying that the entire idea of a “right to privacy” is a bunch of hooey. In his concurring opinion in the 2022 Dobbs decision that struck down Roe, billionaire fanboy Clarence Thomas wrote:

“The resolution of this case is thus straightforward. Because the Due Process Clause [of the 14th Amendment] does not secure any substantive rights, it does not secure a right to abortion. … For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

In other words, bring back the power of states to criminalize birth control, gay sex, and to outlaw gay marriage. (Interestingly, the only other big case SCOTUS decided based on this rationale was Loving v Virginia, which struck down state laws against interracial marriage: Thomas, a Black man married to a white woman, chose not to name that one.)  

Republican Senator Marsha Blackburn recently jumped on the bandwagon, telling her peers on the Senate Judiciary Committee that:

“Constitutionally unsound rulings like Griswold v Connecticut … confused Tennesseans and left Congress wondering who gave the Court permission to bypass our system of checks and balances.”

Last year, Senator Ed Markey (D-MA) brought legislation to the Senate that would enshrine the Griswold, Lawrence and Obergefell decisions in federal law by establishing a federal “right to privacy.”

The bill passed the House and had enough votes to pass the Senate, too, unless any senator objected to “unanimous consent” and threw up a filibuster. Sure enough, on July 28, 2022 Senator Joni Ernst (R-IA) rose to object, after Senator John Cornyn had said:

“[C]oming to the floor and listening to some of my colleagues talk about their concern for lack of access to contraception … reminds me of the old story about the little boy who cried wolf. He cried wolf when there wasn't any danger; and then, once there was danger, people didn't come to his aid because they thought it was another phony crying wolf.

“I can understand our colleagues -- given inflation, given crime, given the broken borders -- wanting to change the subject to something else, but that is all this is. This is mere posturing pre-November, pre-midterm elections. This isn’t about changing the law because the law already permits ready access to contraceptives.”

The bill, which would have definitely and finally established an American’s right to use birth control, died at the hands of Ernst’s Republican filibuster.

A few weeks ago, David D. Kirkpatrick wrote an in-depth piece for The New Yorker profiling Alan Sears, the head of the rightwing culture-wars juggernaut Alliance Defending Freedom. The group reportedly has a $100 million a year budget, over 70 lawyers, and has won 14 Supreme Court and other cases including:

— Overturning Roe v Wade,
— Letting employers refuse to pay for health insurance that covers birth control,
— Allowing a baker to refuse to make a cake for a same-sex wedding,
— Blowing up some pandemic-related masking, vaccine, and other requirements,
— Eviscerating federal transparency requirements for nonprofit donors,
— Gutting federal regulations on religious organizations’ use of federal money, and
— Outlawing the abortion pill, Mifepristone (this one is being appealed).

The most startling part of the article, though, is when Sears tells Kirkpatrick:

“We are on a winning trajectory. It may be that the day will come when people say the birth-control pill was a mistake.”

Earlier this year, the Republican Attorney General of Iowa, Brenna Bird, suspended payments for emergency contraception for rape victims.

Two years ago, Republicans in the Idaho legislature made it a crime for people working in state-funded student health centers in that state’s colleges to discuss abortion with their patients or distribute Plan B emergency contraception.  

Last year, Colorado Republican Rep. Lauren Boebert tried to bar all federal funds for “abortifacient contraceptive drugs” (which is how groups like Students For Life define garden-variety birth control pills) and when discussing a Republican nationwide abortion ban, Republican Rep. Matt Rosendale tried to add in a ban on emergency contraception.

In almost every case, these are not secular or scientific arguments: they’re based in religion and Republican efforts to pander to rightwing Catholics and evangelicals.

I’ve seen this up-close and personal.  On August 2, 1998 Louise and I spent an evening with Pope John Paul II and about two dozen other VIPs who’d been invited to his summer palace, Castel Gandolfo, to hear a concert and have private audiences with His Holiness afterwards.

Watching all the pomp and ceremony, it struck me that if that man were to just say a few words, for example, “Kill all the Muslims,” it could plunge the world into war and turn civilization on its head. In fact, several of his predecessors had done just that, kicking off the Crusades hundreds of years earlier. This was a head-spinning level of political power.

When we met privately with him later that evening, it had all the trappings of a visit to a head of state. The power was palpable and the security as tight as I’d experienced when dining with Obama and Putin.

The day before we went up to Castel Gandolfo, one of the Pope’s personal assistants gave Louise and me a private tour of the Vatican. The art, gold, and wealth were astonishing; this is more than a church: it’s an actual nation-state, complete with a seat at the United Nations where they can weigh in on decisions around family planning.

Here in the US, the Catholic Church lobbies aggressively on a variety of fronts; during the pandemic, according to the AP, that effort brought it more than a billion dollars in federal money. And one in seven hospitals in the US is Catholic-owned and thus unwilling to provide birth control or perform abortions.

Just a few years before our visit to Rome, John Paul II had said that the Church was unalterably opposed to “all propaganda and misinformation directed at persuading couples that they must limit their family to one or two children.”

Seven years earlier, I’d been in Bogotá, Colombia and met with the Archbishop of Bogota, Mario Cardinal Revollo Bravo, at his headquarters, the Cathedral-Basilica of the Immaculate Conception, a massive church and building structure off Bolivar Square.

I was then doing relief work for Salem International out of Germany, and we’d been offered an abandoned church property down near Medellin to house homeless people. A Colombian/German co-worker, Elizabeth, accompanied me to serve as a translator, although we soon discovered that the archbishop spoke fluent English.

When we determined that the property in Medellin wasn’t appropriate for our needs, Elizabeth and I made an appointment to meet with the archbishop.  He kept us waiting for several hours and then we were ushered into a huge space converted from a wing of an old Spanish church to meet him.

The massive room was filled with ancient art and stained-glass windows, and the Archbishop sat on a huge carved chair resembling a throne.

I got off to a bad start, as he extended his hand apparently expecting me to kiss his ring, but being Protestant I instead shook his hand.  He looked offended, and didn’t bother to extend it to Elizabeth, who he merely scowled at and then ignored. 

I thanked him for the possibility of the land in Medellin and told him it wouldn’t work for us, but we appreciated his consideration and looked forward to working closely with the Church in the future on our projects in Colombia and the region.  He said a few words about how there were so many street children, and all help was appreciated.

At which point Elizabeth, standing to my side and a step behind me, spoke up, very simply and gently asking him what he thought of the possibility of some sort of special dispensation (she was speaking in Spanish and I didn’t get all the nuance) for people who worked in family planning, or even pharmacists and drug store-owners so they wouldn’t fear going to hell if they sold condoms or other means of birth control.

The lack of birth control in Colombia, she said, was one of the things driving the epidemic of homeless children who were then taking over entire parts of Bogotá and Medellin.

His face turned red and the muscles bunched around his jaw and neck. His thinning hair seemed to bristle.

He refused to look at Elizabeth and instead turned to me, pushing his right index finger into my face and pounding his left fist on the arm of his throne, shouting angrily.  I’d not seen somebody become so furious so fast in years.

In English he shouted words to the effect of:

“This population explosion is all the fault of women!  It began with Eve, the original deceiver of the first man.  They know when they’re fertile and when they’re not.  They must learn to be chaste and control themselves!”

He was trembling with rage, and Elizabeth and I backed out of his throne room, saying “Sorry, sorry,” in English and Spanish, as fast as we could.

At the end of the day, it’s all about the power. Power of men over women. Power of the state over the individual. And, for the anti-birth-control religious fanatics, power of their church over the state and, by extension, over the rest of us.

Don’t expect much action on the birth control front over the next 13 months; Republicans know that more than 90 percent of Americas are okay with birth control staying legal and they don’t want to risk the 2024 election.

But if they can hold the House and take back the Senate or — G-d forbid — take the White House, you should sign up now with a Canadian pharmacy while you still can.

The next step for Republicans, like the Texas counties that have authorized their police to stop cars they think are transporting women to other states for abortions, will be to have postal inspectors open your mail looking for contraband birth control pills.

And warming up the jail cells they want to put American women into who have the temerity to continue using them after the GOP’s bans take effect.