Birth Control: Could It Be Illegal Again?

The right to use contraception seems obvious, but a fierce battle is starting to heat up

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Americans have been fighting for decades over abortion, but a new battle has been raging lately — and it’s one with a distinctly retro feel. This time, the war is over birth control: whether insurance companies or government should have to pay for it — and yes, even whether it should be legal.

It is 2012: Are we still fighting over condoms and the pill? In fact, we are. The score so far: both supporters and opponents of birth control can point to some significant wins, and neither side shows any sign of backing down.

The right to use contraception seems so obvious that it is startling to realize that not that long ago even married couples could be arrested for using it. In 1965, the Supreme Court overturned a doctor’s conviction for helping married couples obtain birth control. It was not until 1972 that the Supreme Court struck down a Massachusetts law making it illegal to distribute birth control to single people.

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Those two rulings, along with the sexual revolution of the 1960s, established the right to buy contraceptives. But there have always been groups — notably the Catholic Church and some evangelicals — who have not given up the fight. And the rhetoric can get downright apocalyptic. Last year, Representative Steve King, Republican of Iowa, warned that if birth control is too readily available it could destroy America. “If we let our birth rate get down below the replacement rate, we’re a dying civilization,” King said. Jeffrey Kuhner, a conservative columnist for the Washington Times, argued that the Obama Administration’s support for birth control is part of a “culture of death.”

Opponents of birth control are putting most of their energy into trying to cut off government funding. The well-publicized conservative campaign to defund Planned Parenthood has been about birth control as well as abortion. As one New Hampshire lawmaker said of his vote to stop funding: “I am opposed to providing condoms to someone. If you want to have a party, have a party, but don’t ask me to pay for it.” These defunding efforts are succeeding at the state level. Wisconsin, Texas and New Jersey have cut or eliminated state support for Planned Parenthood, and other states have been trying. (Federal courts blocked defunding laws in North Carolina, Indiana and Kansas.)

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While birth-control opponents have been making progress at the state level, supporters have scored two big victories at the federal level. Last year, the Obama Administration decided that insurance companies that participate in the national health care system must cover birth control without a deductible or co-payment. This mandate, which will take effect on January 1, 2013, is expected to extend free birth control to tens of millions of women.

The pro-birth-control camp won again this month, when the Obama Administration decided to apply the mandate to health-insurance plans for employees of religious hospitals and schools, which had been strongly opposed by the Catholic Church and social conservatives. And while most of the fighting these days is over whether birth control will be paid for, some opponents have still not given up on trying to ban it altogether, for example, by trying to put “personhood amendments” on state ballots. These amendments are billed as abortion bans, but their definition of life would also make it a crime to use popular forms of birth control, including the IUD, and perhaps the pill. (The activists are not concerned that the Supreme Court would almost certainly strike down these amendments if they are passed — they insist that they are building a movement.)

So far, personhood amendments have not fared well. Colorado has voted them down twice, and last November Mississippi voters overwhelmingly rejected one. But the activists are not giving up: they are working in at least 12 states to put referendums on the ballot this fall.

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For now, the pro-birth-control forces are clearly ahead — and that is a good thing. It should be clear by now that universal access to birth control gives women the ability to control their lives, and makes it more likely that when babies come into the world they are wanted — and that their parents are in a position to care for them.

But birth-control opponents are not resting. They hope one day to reverse the mandates in the national health care plan. And they continue to plug away at the state level — where they insist that they are just getting started.

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