History of Contraception Use and Control

GENERAL. Various societies have interceded for centuries in the free use of contraception, largely for moral and/or religious reasons. Classical Islam permitted the use of birth control and even early abortion (Fathalla et al.). Biblical Judaism, based on interpretations of the story of Onan in Genesis 38: 8—10, condemned coitus interruptus and the use of male condoms. Christianity gradually evolved a doctrine, based on biblical references, interpretations of natural law, and the writings of Saint Augustine (354-430), that prohibited use of all contraceptive devices (St. John-Stevas). Widespread, class-linked knowledge of contraceptive practices was effectively withheld from most of the population following the condemnation of birth control by philosopher and religious Thomas Aquinas (1224 [or 1225]-1274] in the mid-thirteenth century (Fathalla et al.). As religion formed part of the basis for modern secular law, control of fertility became a subject of legal attention and regulation.

Abortion, as a method of fertility control, has always been especially controversial. Despite its morally and legally complex past and its tendentious present, there is evidence today that abortion remains a favored method of birth control for many women, both as a preferred method of fertility control and as a backup to failed contraception. An estimated 46 million abortions are performed worldwide each year (Alan Guttmacher Institute). Unintended pregnancy is the leading cause of abortion. Approximately 150 million married women want to stop having children but are not using contraception (World Health Organization [WHO]). In the United States, where contraception is readily available, 49 percent of pregnancies are unintended (Henshaw). The United States Center for Disease Control (CDC) reported 884, 273 legal induced abortions in 1998, a ratio of 264 abortions per 1,000 live births.

While contraception and abortion address the prevention or termination of any specific pregnancy, sterilization terminates individual fecundity. With the development of modern, comparatively safe, and effective means of sterilization (vasectomy, or surgical excision of the duct carrying sperm from the testicles; and salpingectomy, or surgical removal of one or both fallopian tubes), individuals can choose, by means of one medical intervention, to detach sexual intercourse from reproductive consequences. If chosen by individuals, these simple and almost always irreversible interventions extend autonomy; if imposed by the state, they can become instruments of repression.

Whether contraception, sterilization, and abortion should be permitted, prohibited, or coerced by government has generated intense controversy in countries as different as the United States, Romania, India, Ireland, and China. In each country, legislators, judges, individuals, and special-interest lobbies have struggled to affect how citizens will think about their options for controlling fertility, how the individual decision-making process will be informed and supervised, how access to contraception, abortion, and sterilization will be ensured or precluded, and whether coercion will be encouraged, permitted, or prohibited (Weston; Thomas).

Both female and male condoms have been available for centuries. Roman women attempted to use goat bladders (Fathalla et al.), and some African women hollowed out okra pods (Robertson). A picture of a penile sheath is recorded as early as 1350 b.c.e., although male condoms did not come into general use in Europe until 1671 and became reliable only with the vulcanization of rubber in 1843 (Robertson). Monitoring and prohibiting use of birth-control devices such as condoms are difficult because of the inherently private nature of their use. Manufacture, distribution, sale, and advertising are more easily regulated and prohibited.

Despite the long history and the private nature of fertility control, various legal and theological systems have attempted prohibition. The early Christian (Roman Catholic and Protestant) argument against contraception, influential as the model for legal regulation, holds that God's purpose for sex is conservation of the species, which is frustrated when people have intercourse for nonprocreative purposes (St. John-Stevas). The Catholic Church first proscribed contraception in canon law in 1140 (St. John-Stevas). While not all religions have been as resistant to the idea of contraception as the Catholic Church, contraceptive use has traditionally been considered an appropriate area for moral guidance and proscription and not until the beginning of the twentieth century did significant numbers of Protestant theologians provide moral approval (Larson).

Religious regulation has been selective. Some forms of birth control were interdicted, while others were and have remained relatively unnoticed. In addition prolonged lactation, postpartum abstinence, delayed marriage, celibacy, and to some extent infanticide, are all techniques of fertility management that have been and continue to be used.

U.S. HISTORY. Puritan theology dominated the early American colonists. The Puritans considered sex-related matters part of the devil's province, to be shunned and ignored, and they tolerated little open discussion (Robertson). In the 1830s some popular literature on contraception, such as Robert Dale Owen's Moral Physiology, began to be generally available (Robertson, Reed). Not until 1873 did law begin regulating distribution of contraceptives in the United States. The Comstock Act ("An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use") equated contraception with obscenity and made it a federal offense to use the postal service for transporting obscene materials, defined to include contraceptive and abortion information and equipment. The act also banned importation and interstate transportation of such items (Sloan). After the act's passage, many states adopted their own regulations on the sale, advertising, and display of contraceptive devices.

Margaret Sanger, a nurse affected by her work in poor communities where morbidity (the incidence of disease) and mortality from abortion was high, was a vociferous advocate for birth control (Reed; People v. Sanger, 1918). She founded a monthly magazine, The Woman Rebel, for which she was arrested and indicted under the Comstock Act. She fled to Europe and returned in 1916 to establish the first American birth-control clinic in Brooklyn, a borough of New York City (Chessler). In 1918 she was convicted and sentenced to thirty days in the workhouse under New York State's Comstock law. Years later a physician in one of Margaret Sanger's clinics who had ordered a package of contraceptives through the mail was charged with violating the Tariff Act of 1930, a statute based on the Comstock Act that prohibited importation of "any article whatever for the prevention of conception or for causing unlawful abortion." On appeal the federal circuit court for the second circuit held that the act did not apply when the article imported was not intended for an immoral purpose. Judge Augustus Hand declared that the Tariff Act was part of a "continuous scheme to suppress immoral articles and obscene literature," and refused to find proper medical use of a contraceptive by a licensed physician to be immoral or obscene (U.S. v. One Package ..., p. 739). Though the court did not invalidate the statute, its interpretation limited the sweeping definition of morality and obscenity that had previously held sway.

Statutes modeled after the Comstock Act continued to exist, however, until 1965, when the U.S. Supreme Court in the case of Griswold v. Connecticut invalidated a Connecticut statute prohibiting the use of contraceptives. The Court held, citing prior cases that had created a zone of privacy protecting certain personal behaviors, that these penumbral rights of "privacy and repose," based on several fundamental constitutional guarantees, protected the use of contraceptives by married persons (Griswold v. Connecticut, p. 481).

Griswold was followed by Eisenstadt v. Baird (1972), extending this reasoning to nonmarried individuals. The statute that was invalidated in Eisenstadt prohibited single persons from obtaining contraceptives to prevent pregnancy, and permitted contraceptives only on a physician's prescription for the purpose of disease prevention. The statute was held to violate the equal protection clause of the Fourteenth Amendment:

[W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. (Eisenstadt v.

Minors gradually attained access to contraceptive advice and devices. In 1977, in the case of Carey v. Population Services International, the U.S. Supreme Court invalidated a New York State statute that had banned the sale or distribution of contraceptives to persons below the age of sixteen and had prohibited the advertising or display of contraceptives by any person, including a pharmacist. In 1983 the Supreme Court struck down a federal statute prohibiting unsolicited advertisements of contraceptives (Bolger v. Young Drug Products Corp.). In addition, under Title X of the Public Health Services Act and Title XIX of the Social Security Act, receipt of federal funds prohibits a requirement of parental consent for services and requires confidentiality. Efforts to require parental notification under these acts have been held unconstitutional (Jane Does 1 through 4 v. State of Utah Dept. of Health, Planned Parenthood Association of Utah v. Dandoy), and federally funded clinics provide a full range of advice and service for fertility control for adults and minors.

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