Two decisions in the past two weeks by the Supreme Court offer sharp reminders that while Americans and even American businesses have long embraced birth control, the law has not.
Two weeks ago, the nation’s highest court struck down restrictions that had created protest-free buffer zones near abortion clinics. Soon after, the court ruled that government can not require “closely held” business to provide employees with birth control.
When Sanger, the crusading feminist, and Pincus, a biologist, got together in the early 1950s to begin development of the world’s first oral contraceptive, knowledge of the government’s opposition guided their every step. They viewed themselves as populist rebels, armed with the strong belief that Americans were ready for change even the law wasn’t. To bring about that change, they knew they would first have to outsmart the establishment, appeal to the general public and prove to manufacturers that a market existed for their product.
Despite the Supreme Court’s actions, birth control is overwhelmingly supported in the U.S.: 69 percent approve of mandated contraceptive coverage by health plans, and 89 percent of Americans (including 82 percent of Catholics) find birth control morally acceptable.
Comstock laws, passed in 1873 to combat obscenity, were still very much in force in 1916 when Margaret Sanger opened her first birth-control clinic in 1916. Contraception was considered obscene, and Sanger and her allies faced frequent arrests.
Sanger spent decades distributing condoms, diaphragms and intra-uterine devices, but she dreamed of something modern and scientific—a pill that would allow women to turn off and on their reproductive systems. Most scientists told her she was crazy. No scientists would risk their careers to work on it. No drug company would dare manufacture it. The government would never allow it. Men, it should go without saying, were in full control of business and government at the time.
Sanger was in her 70s and seriously ill when she met Pincus, an expert in human reproduction who had been dumped by Harvard because he was too radical (and Jewish, to boot) and forced to start his own laboratory in a garage. With nothing to lose, Pincus told Sanger he would gladly assist in her quest for a pill.
Pincus suspected that a progesterone-based pill would work. But how to test it when birth control was illegal in his home state of Massachusetts and in much of the United States? Ingeniously, and somewhat deceptively (he was later criticized for “deceit, colonialism and the exploitation of poor women of color“), he enlisted gynecologists and asked them to give progesterone to women seeking treatment for infertility. From there, he gave the pill to women who were confined to an insane asylum. Finally, he launched widespread clinic trials in the slums of San Juan, Puerto Rico (and later in Haiti and Mexico), where birth control clinics were abundant, popular and legal. In a brilliant marketing move, Pincus brought on a highly respected Catholic gynecologist, Dr. John Rock, to lead the tests.
The pill was far from perfect. Pincus had ramped up the dosages, leading to widespread complaints of nausea and bloating, among other things. But this is where public support kicked in.
Long before the FDA had even been asked to approve Pincus’s pill, women read news accounts of the research and asked their doctors how they could get these pills. Some women wrote directly to Pincus, saying they would gladly sign up for his experiments if it meant they could avoid another pregnancy or miscarriage.
The early groundswell helped Pincus convince a pharmaceutical company, G.D. Searle, to back his research and to present an application to the Food and Drug Administration.
They began by asking the FDA to approve their pill, dubbed Enovid, not for birth control but only to help women regulate their menstrual cycles. The FDA granted their request, and before long hundreds of thousands of perfectly healthy women were visiting their doctors to complain of irregular menstrual cycles. The FDA had not yet approved the pill for contraception and the Supreme Court had not yet established a woman’s right legal to birth control, but the pill was spreading rapidly across the land.
The law would take years to catch up.
There’s no silver lining when women are being stripped of the rights Sanger, Pincus and others fought to obtain. Birth control is “a compelling interest in public health and women’s well being,” as Justice Ruth Bader Ginsburg wrote in her dissent to the 5-4 Hobby Lobby decision.
The important thing to remember at times such as this is that overwhelming majority of Americans agree with Ginsburg, and the law won’t change public opinion. Women need more and better birth control. They need greater access to it. And, like Sanger and Pincus and so many others, they’ll fight for it when they have to.