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Griswold, Privacy, and the Right of Women to Religious Liberty

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It's hard to believe that 40 years ago doctors in America were prosecuted for providing women with birth control, and women risked jail for using it.

On June 7, Americans -- and American women in particular -- once again celebrate the anniversary of the Supreme Court's 1965 decision in Griswold v. Connecticut. That seminal decision outlawed efforts to jail any married woman "who uses any drug, medicinal article or instrument for the purpose of preventing conception" -- an action that would be incomprehensible today. Maybe jail time for contraceptive use is a thing of the past, but there is a renewed effort now to make contraception just as difficult to obtain as it was pre-Griswold.

Perhaps the most important aspect of the 1965 decision was that it affirmed a right to privacy that protects the ability of individuals to make decisions about reproductive matters according to their own conscience, although that right was at first limited to married couples.

Most of us now take this right for granted, and certainly, the use of contraception is ubiquitous. Yet the principle of Griswold is under attack as never before, caught up in an argument about the ability of employers to impose their views of contraception on their workers, and the ability of women to assert their own religious liberty rights free of discriminatory treatment by their employers. The latest assault comes in response to the recognition by the U.S. Department of Health and Human Services (HHS) that contraception is an integral part of women's preventive health care and that, under the Affordable Care Act, employers who offer health insurance would now be required to cover contraceptive services without added cost to women. Strictly religious employers would be exempt.

Despite the vocal opposition from anti-birth-control religious leaders and lawmakers, this policy is hardly a stretch. After all, there has been a dramatic expansion of legal rights for women in the last five decades through legislation and court cases, including the right to be free of discrimination on the job. All employers of a certain size were covered by these laws, whether or not they had a religious affiliation. Only employers that were strictly religious in nature, such as churches, mosques, and synagogues, were exempted. Many states also imposed nondiscrimination requirements, and in keeping with the state power to regulate insurance, those states required employers to offer insurance that included contraception.

But now, a legal principle meant to protect employees was turned on its head, and employers asserting a religious affiliation claimed that it was their rights that were under attack. In Congress, the movement spread, and legislation was introduced and voted on that would allow any employer to tailor their employee insurance plan to deny coverage of any health-care procedure to which that employer had a personal objection. Lost in the maelstrom is the original idea of Griswold and the decisions that followed, that individuals have a right to access birth control. The progress made over the decades -- the recognition that women's unique health needs could not be ignored -- went by the wayside. Lost as well is the idea that women have religious liberty rights at stake, and that their ability to exercise them ought not to be limited by their employers. The debate too often has been framed as pitting employers' religious rights against women's health, as if women have no liberty at stake.

Case in point: HHS devised an accommodation that shifts the cost burden for including contraception away from religiously affiliated employers and puts it on insurance companies -- literally giving objecting faith-affiliated employers an out -- but that hasn't been enough for them. Dozens of lawsuits have been filed to overturn the HHS decision -- some by states, but most by Catholic institutions, but they all have it backward.

Employers' beliefs on racial equality, the role of women in the workplace, or on the requirement to ignore religious affiliation in hiring have never been a reasonable defense against a charge of discrimination. When it comes to public policy, the personal or institutional religious beliefs of employers cannot become a legal basis for making employment decisions. We have come too far for that. In truth, the accommodation made by HHS goes beyond what the law and the Constitution require. If women's right to use contraception is to mean anything at all -- if their individual right to make their own health decisions based on their own religious and ethical beliefs is to be a reality -- those rights must be protected by law from the interference of their employers.