Mill, Liberty, and the First Amendment: Burwell v. Hobby Lobby Stores, Inc., Employee Rights to Privacy, and Economic Justice

Birth Control and Privacy Rights

The notion of privacy is complex in its definition. Conceptually it involves an individual’s rights to make personal decisions without coercion from others or the government. This notion of privacy is also reflected in legal terms. Legal definitions of rights attempt to define the relationship between one individual and another often aiming at protecting privacy. Here, the law recognizes the right of the individual to “control the possession and the use of certain tangible and intangible things – a house, a business, or an idea. It recognizes this right by prohibiting or requiring certain activities by others or imposing penalties on those who violate these mandates.” On the other hand, legal protection of individual privacy from government intrusion is less clear. Though some states have an explicit right to privacy built into their constitutions, no exact provision exists at the federal level which clearly states a right to privacy in the United States Constitution. Thus, a literalist interpretation of the constitution argue that no general prohibition exists which would limit a government at various levels from intrusions of privacy upon citizens.

Privacy and Contraception

Griswold v. Connecticut, 381 U.S. 479 (1965), was the landmark case that explicitly recognized for the first time a constitutional right to privacy. The Planned Parenthood League of Connecticut in 1961 opened a center in New Haven for the distribution of information on birth control. After a nine day period, the executive director of Planned Parenthood (Estelle Griswold) and the medical director of the clinic were arrested while counseling a married couple about the use of contraception, which was a crime to use at that time. Both Griswold and the medical director were tried and convicted for aiding and abetting a crime. Through the state court system they appealed. Appeals to this decision failed and the case was eventually heard by the Supreme Court.

It is important to note that at this point, some theorists find it important to clarify the distinction between “privacy” and “autonomy” in Griswold v. Connecticut since privacy may constructed as autonomy. This confusion has surface in legal literature, according to Hyman Gross, “by early and repeated use of the phrase ‘right to be left alone’ as a synonym for the ‘right to privacy.’ The United States Supreme Court succumbed completely in 1965 in its opinion Griswold v. Connecticut, and the ensuing intellectual disorder warrants comment.” In this case legislative prohibition of the use of contraceptives was said to be a violation of the constitutional right to privacy, at least when it affected married people. The court’s opinion, according to Gross, “relied heavily on an elaborate jeu de mots, in which different senses of the word ‘privacy’ were punned upon, and the legal concept generally mismanaged in ways too various to recount … In the Griswold situation there had been an attempt by government to regulate personal affairs, not get acquainted with them and so there was an issue regarding autonomy and not privacy.” Gross continues by arguing that “the opinion in Griswold was not illuminating on the question of what are proper bounds for the exercise of legislative power, which was the crucial matter before the court. It is precisely the issue of what rights to autonomous determination of a person’s affairs are enjoyed by a citizen.”

The Griswold opinion not only failed to take up that question in a forthright manner, but rather promoted confusion about privacy in the law by unsettling the intellectual focus on it which had been developed in torts and constitutional law. Gross argues that if the confusion in the court’s argument was inadvertent, then “one may sympathize with the deep conceptual difficulties which produced it, and if it was deliberately contrived, admire its ingenuity.” Nevertheless, regardless of its origin, the effect confused two different substantive meanings – privacy and autonomy – which need greater clarification because of the equivocation on the two terms. This ambiguity can be understood since an offense to privacy may be an offense to autonomy, but not every restraint on autonomy is a compromise of privacy.

With this clarification noted, the present case of Griswold concerns a relationship which relates to the zone of privacy grounded in what would seem fundamental constitutional guarantees philosophically rooted in the constitution’s underlying principle of liberty and autonomy. The issue of a law which focuses on forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means which have a destructive impact upon that relationship. Such a law cannot stand in light of familiar principle, when applied by courts, a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Thus, the police have the right to search bedrooms for contraceptives and seize evidence that may pertain to the illegal use of such devices as the law would have upheld prior to Griswold. This would also pertain to detaining suspects, finding witnesses and jail time served if warranted by law.

 

Douglas’s opinion in Griswold was insightful, however, in keeping with judicial traditions, Douglas would allow for state wide discretion under its police powers to regulate most economic and social activities, especially those that relate to public health. In fact, the opinion recognizes the inherent power of the state to regulate contraceptives in their use and production. The importance of the opinion lies in Douglas’s recognition that the exercise of state power would affect an important, constitutionally recognized individual right or “fundamental interest.” Consequently, an otherwise valid exercise of state power cannot be achieved by means of having a “maximum destructive impact” upon such an individual interest, nor may it “sweep unnecessarily broadly.” In other words, the court believed that when such an important private interest was at stake, the courts must abandon their traditionally deferential role to the states and take a much more active role in reviewing the wisdom and validity of legislation which invades this privacy.

Courts and legal experts tend to agree that this more active role of courts is appropriate where sufficiently important individual interests are at stake. The controversy and ambiguity in Griswold is over clarifying the circumstance under which direction is appropriate. In that regard, the most unusual aspect of Douglas’s opinion was that it created, or at least recognized for the first time, a new constitutionally protected interest, and a new area of judicial involvement in legislative matters. Furthermore, Douglas implied that other constitutional rights might be found in relation to the issue of privacy within the constitution. Still, Douglas defined one application of this right and gave only an outline of its nature. The majority opinion speaks generally of “zones of privacy” and specifically of one of these zones: sexual activity between married people. Despite this, the Griswold case did not hold that the state could not invade this zone of privacy in any way and neither did it clarify whether other activities by other people would fall within this important yet unclear category.

Privacy and Unmarried People

The Griswold case had an impact felt nationwide. Numerous states legislatures, including Massachusetts, amended their statutes to conform to the apparent dictates of the opinion. Under the “Crimes Against Chastity, Morality, Decency and Good Order,” Massachusetts criminal statutes had forbid the use of any contraceptive devices. After Griswold, the Massachusetts statute was amended by the state legislature to make an exception for contraceptives given to a married individual with a prescription by a physician or pharmacist. In effect, contraceptives were to be treated as prescription drugs available only to married people.

An initial reading of Griswold after its decision might have led to conclusion that the Massachusetts law as amended might still be valid. Justice Douglas’s assessment left a clear impression that sexual conduct within marriage was a private matter and protected by the Constitution. Nonetheless, there was the implication in the decision that the state could regulate contraception in some capacity, inclusive of married couples. This inference, however reasonable, soon became invalidated in Eisenstadt v. Baird. William Baird’s name had been associated with a number of social causes, and in the late 1960’s he was known in Massachusetts for his crusades to free birth control from the strict legal restraints imposed in that state. He openly violated these laws and eventually forced his own prosecution in order to challenge their constitutionality.

In May 1967, Baird gave a lecture on birth control at Boston University. His presentation includes exhibits and displays of contraceptive devices, and after his address he invited members of the audience to help themselves to available samples. Baird was approached by an unmarried woman, to whom he personally handed a can of vaginal foam. At that moment, the local sheriff Thomas Eisenstadt, had been in the audience and subsequently arrested Baird. He was charged with both exhibiting contraceptives and giving contraceptives to an unmarried person in violation of the Massachusetts statute. Baird was tried and convicted, to which he appealed through the state court system. The Massachusetts Supreme Court reversed the conviction for exhibiting contraceptives as a violation of Baird’s right to free speech guaranteed by the First Amendment of the United State Constitution. However, the state court upheld his conviction. Baird then filed a writ of habeas corpus in federal court. His appeal was dismissed in both the federal district, and the federal circuit court of appeals. Baird then appealed to the Supreme Court.

In writing for the majority, Justice Brennan argued that Baird’s claim essentially challenged the constitutionality of the Massachusetts statute under the equal protection clause of the Constitution. Justice Brennan, examining the statute according to the principles of equal protection, held that “the question for determination in this case is whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried people under Massachusetts General Laws.” Brennan further surmised that if the purpose of the statute was directed at deterring premarital sex, as the state argued, then those who engage in premarital sex could potentially be punished with pregnancy. Moreover, the Court argued that “aside from the scheme of values that assumption would attribute to the state, it is abundantly clear that the effect of the ban on the distribution of contraceptives to unmarried people has at best a marginal relation to the proffered objective.” The Court also identified the irony of a contraceptive law that proposed to regulate premarital sex but apparently did not discourage extramarital sex. The Court went on to note that contraceptives could be legally distributed in Massachusetts as long as they were used for the prevention of disease but not when they were used to prevent conception. Furthermore, the Court also reasoned that if the purpose of the Massachusetts statute was to regulate dangerous, health-related devices, Eisenstadt claimed, not only would statute be based on the false assumption that all contraceptive devices can be dangerous. The statute would therefore be unnecessarily broad and discriminatory.

Economic Impact of Contraception

On Friday, February 10, 2012, President Barack Obama, announced the revamp of his contraception policy requiring religious institutions to fully pay for birth control in the new Obamacare legislation. The decision to have a child, or not, implies an expense that significantly impacts a family and their finances for an indefinite period of time. In addition to general costs to support a child, other related expenses can include health insurance, maternity or paternity leave, whether paid or unpaid, costs related to training and education. Time off from work if the child is sick, child care cost, transportation expenses, and most basic of all: can a woman afford the contraception she needs in order to plan her family. Women cannot responsibly plan their families or their careers without access to affordable contraception. And related to this is affordable housing, health care, and a living wage salary are also key to their economic security and family stability.

President Barack Obama announced on January 20 that under the Affordable Care Act employers were required to include no-cost preventive services, including contraception, in their health care plans. Churches and houses of worship were exempt from the birth control requirement, but religiously affiliated employers such as hospitals, universities, and charities, were not. The president’s announcement triggered a storm of protest, ranging from the U.S. Conference of Catholic Bishops to prominent Catholic liberals. Some critics accused President Obama of “waging a war on religion” and the basic tenets of religious liberty. Three weeks after the announcement, the president issued a revised regulation that included an accommodation for religiously affiliated employers. Under the new rule these employers would not be required to include contraceptive coverage in their health plans. Instead, their employees would get no-cost coverage directly from the insurance provider.

The new rule satisfied most critics but not all of them. Many conservative members of Congress, leaders on the religious right, and others increased their demands. They now argued that no employer, religiously affiliated or not, should have to include contraception—or any other health service they found morally objectionable—in their health plans. As conservatives demanded religious liberty for bosses, women’s groups and others stood up for the religious liberty of employees who needed contraception to follow their conscience and live responsible lives. This liberty is rightly understood constitutionally as the “right to privacy.” Broader economic issues such as jobs and what the lack of access to contraception implied were sidetracked for arguments about reproduction, religion, and women’s sexuality in general. When specific economic issues related to contraception did break through, however, they tended to focus on the cost of contraception, and the fact that millions of women struggle to pay for it. While contraception’s price tag is certainly an issue, missing from the debate was the broader picture connecting family planning with women’s economic circumstances.

Contraception is an economic issue, not simply because of the cost of contraception, but because family planning allows women to control the timing of when they will decide to have children, as self-determining, autonomous persons. This is intrinsically related to Brandeis’ view that as autonomous individuals, matters of intimacy and privacy for individuals are best left to the individual to decide. The withholding of contraception within health care access deprives the person of one of the integral elements of health care access and at the same time potentially jeopardizing the economic well-being of the woman and her family. Access to contraception is not only an issue related to privacy, but also related to economic justice. In fact women now make up half of the nation’s workforce and 60 percent of women are breadwinners for their family, in large part because of greater access to contraception. A recent study showed that birth control played a critical role in reducing the gender pay gap because of the investments it allowed women to make in their education and careers.

Because family planning enables women to plan their pregnancies, it also leads to healthier mothers and babies. As a result, it reduces costs to individuals and families, to our health care system, and to society. Suffice it to say, a woman’s economic circumstances can strongly influence when and how she chooses to have children and therefore when and how she needs to use contraception. For instance, a woman whose job provides no paid family leave might not be able to afford time off from her job to bond with her newborn and to recover from childbirth. The lack of contraception further complicates all of this. Even worse, a woman whose local Planned Parenthood clinic gets shut down is squeezed between no choices at all. She can’t afford to have more children, nor can she afford the birth control she needs to avoid getting pregnant.

All women live somewhere on the economic ladder. So you would think pro-family conservatives would do whatever they could to promote women’s economic security, since it is so crucial to their families’ and their own well-being. From affordable health care to paid sick days, from equal pay to affordable housing, conservatives are fiercely opposing the very structures families need in order to grow strong. House Budget Committee Chairman Paul Ryan’s (R-WI) fiscal year 2013 budget proposal, which just passed the House, offered a striking case in point. It would have raise taxes on middle-class families, increase unemployment, shred the health care safety net, shortchange education, increase the national deficit, and more. Conservative budgets being proposed today regarding the recent recertification of Obamacare would cripple America’s families. Its draconian cuts would strip away the economic stability women and their families need, even as its supporters proclaim their love of family. These supporters need to either put basic family protections in their budget or quit pretending they’re on the side of mothers, fathers, and children.

Access to Contraceptives: The Social and Economic Benefits and Role in Achieving Gender Equality

States belonging to the European Union (EU) are dedicated to the realization of gender equality at every level, whether public or private life. Critical to the success of this campaign is access to contraceptives. The reproductive sovereignty of women, and subsequently their ability to determine when to have pregnancies – and how many – is vital to their internal capacities for self-determination and full membership of their individual societies. By ensuring access to forms of contraception, the EU recognizes it will not only realize complete inclusion of women in the different spheres of life, but also it will translate into sundry economic and social benefits—not the least of which are healthy, productive, and full lives for women in the EU. The strengthened commitment to gender equality in the EU stems from the Treaty of Amsterdam (which amended the Treaty of the European Union). In addition to this policy, the European Community Treaty (EC Treaty) acknowledges that gender equality requires elevating living standards in quality of life. This obligates the European Community (EC) to abolish inequalities and to espouse equality between the sexes, especially on behalf of women.

Concerning access to contraceptives, Ministers of Gender Equality in European Union Member States recognize the right of women to fully enjoy sexual and reproductive health (and rights). Moreover, they recognize this as fundamental to lasting and fully-fledged progress in gender equality. The European Parliament has weighed in on this, issuing a resolution on women’s sexual/reproductive health (and rights), calling for increased access to contraception. In particular, the Parliament recommends that Member States engender excellent policy at the national level regarding sexual/reproductive health and rights. In conjunction with “plural civil society organizations,” Member States should provide all-encompassing information regarding family planning methods that are safe, responsible, and effective. This will require that states ensure access to every form of high quality contraception/methods. Finally, states need to ensure that impoverished people also have improved access to reproductive/sexual health services, especially in terms of contraceptives options.

EU Member States have, on account of the foregoing goals, a duty to cease discrimination as well as to advocate gender quality and mainstream this quality in their individual state legislation and policy. Ultimately, by providing equal/effective access to contraception, states will guarantee this EU commitment.

Access to Contraception and Its Socio-Economic Upside

Ensuring access to contraception and services for family planning, states and governments advance human development and economic growth. Family planning is crucial to ensuring health and education benefits for women and their children. Thus, it contributes to an increased productivity and economic security at household and societal realms. Preventing unwanted births and reducing maternal/infant mortality/morbidity also reduces burdens on the health care system. So, subsidizing reproductive health services, which includes contraceptives, allows governments to ensure health in a strategic fashion and to better, more effectively, allocate state funds.

Conclusion

The equal protection analysis invoked by Justice Brennan in the Eisenstadt case, was to some degree contradictory. Justice Brennan claimed that state legislation was really being tested in this case, and that the rational basis for such a law was in question. As a result, the Court’s decision established three very important principles. The first holds that the “fundamental interest” to privacy protected by the federal Constitution, however defined, at the very least includes the use of contraceptives by unmarried and married people alike. The second demonstrates that the Court is willing to examine the legislative discretion of the state closely and with some suspicion when the right to privacy is affected. The rationale of the state is accepted if it actually serves a valid purpose and does so with a minimal impact on individual privacy. Third, the legal ambiguity that exists between “privacy” and “autonomy” still remains.

Over time the Court has generally attempted to make principled legal decisions and has with some success managed to avoid overtly political decisions. For the most part, the justices have traditionally valued and supported the principle of stare decisis, the division of powers, and other elements that are critical to their role when interpreting the United States Constitution. Nevertheless, the Constitution is ultimately no more, and no less, than what the majority of nine individuals choose it to be at any given time. If they disagree with a lower court’s decision, they have the power to limit, overturn, or rescind previous rulings on privacy. This is why it is increasingly difficult to analyze and explain the evolution of the constitutional right to privacy rooted in Griswold and Eisnstadt because of the changing nature of the Supreme Court. It is also increasingly difficult to predict the future of the right to privacy since the legal grounding of this issue is not clearly defined by the Supreme Court. The otherwise cavalier assumption that the Constitution guarantees a right to privacy needs more legal analysis and constitutional justification if the right to privacy is to be truly guarantees and protected.

It would be far too optimistic to assume that the right to privacy is guaranteed based on prior Supreme Court decisions. There is a great deal that should be considered unsettling about these cases in relation to the right to privacy. These cases still confirm important principles and illustrate important lessons concerning the law and the legal system that are ultimately as important as any assessment of the current constitutional status of privacy. In Griswold and Eisenstadt, it appears that the constitutional status of the right to privacy has significant foundation based on court adjudications at the federal level. Yet the right to privacy at local levels of government is nevertheless a matter of interpretation for local courts, even though some legal precedents have been established by the Supreme Court. This is because the courts have not been precise in their definition and application of privacy rights. The task of public policy will be to address this issue through proper legal discretion in light of what may happen at the local levels of government. More adjudication may take place at the local levels with respect to health care privacy rights, even though federal law has precedent over state and local government as in Griswold v. Connecticut and Eisenstadt v. Baird.