By MIKE MAGEE
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
This striking and sweeping statement of values, the Preamble to our Constitution, was anything but reassuring to the wives, mothers, sisters and daughters of the Founding Fathers. Abigail Adams well represented many of them in her letter to John Adams in March, 1776, when she wrote:
“Remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If particular care and attention is not paid to the Ladies we are determined to foment a Rebellion and will not hold ourselves bound by any Laws in which we have no voice or Representation.”
Her concern and advocacy for “particular care and attention” reflected a sense of urgency and vulnerability that women faced, and in many respects continue to face until today, as a result of financial dependency, physical and mental abuse, and the complex health needs that accompany pregnancy, birth, and care of small infants.
The U.S. Constitution is anything but static. In some cases, the establishment of justice, or the unraveling of injustice may take more than a century. And as we learned in the recent Dobbs case, if the Supreme Court chooses, it may reverse long-standing precedents, and dial the legal clock back a century overnight.
Roe v. Wade was a judicious and medically sound solution to a complex problem. Perfection was not the goal. But in the end, most agreed that allowing women and their physicians to negotiate these highly personalized and individualized decisions by adjusting the state’s role to the reality of the 1st, 2nd, and 3rd trimester made good sense. But getting physicians to step forward and engage the issue was neither simple nor swift.
In July, 1933, McCall’s magazine published one of hundreds of ads that year for contraceptive products. This one was paid for by Lysol feminine hygiene. It pulled punches, using coded messages, and suggesting that the very next pregnancy might finally push a women over the edge, and that would indeed be a “travesty.”
The ad read:
The most frequent eternal triangle:
A HUSBAND…A WIFE…and her FEARS
Few marriages would flounder around in a maze of misunderstanding and unhappiness if more wives knew and practiced regular marriage hygiene. Without it, some minor physical irregularity plants in a women’s mind the fear of a major crisis. Let so devastating a fear recur again and again, and the most gracious wife turns into a nerve-ridden, irritable travesty of herself.
Birth control had by then become a huge and unregulated business. As one report noted, “Capitalizing on American’s desire to limit family size in an era of economic hardship, pharmaceutical firms, rubber manufacturers, mail-order houses, and fly-by-night peddlers launched a successful campaign to persuade women and men to eschew natural methods for commercial devices whose efficacy could be ‘scientifically proven’. . . with the industry’s annual sales exceeding $250 million, Fortune pronounced birth control one of the most prosperous new businesses of the decade.”
This was a decided shift from the Roaring 20’s when coded messaging was the rule rather than the exception, and the AMA maintained a respectful, self-protective distance from the controversy.
As one report described, this was “…an era when the American Medical Association did not consider contraception part of medicine . . .The goal of the birth control movement in the 1920s and 1930s was to take power away from the commercial advertiser and place it in the hands of the physician.”
For Margaret Sanger, medicalizing women’s autonomy over birth decisions was essential. Having highly respected and politically powerful physicians as allies in the struggle provided much needed shielding nationwide. Sanger’s efforts to expand women’s health services, especially to immigrants fleeing the war clouds settling over Europe, demanded partnerships with physicians. But physicians were leery when it came to going public in support of birth control. Even noted academic supporters feared being accused of advertising birth control for profit which was distinctly outlawed under the AMA code of ethics.
By 1937, however, the AMA felt the winds of change blowing. FDR already knew a war was coming and that availability of contraception would be a critical factor in avoiding outbreaks of venereal disease among the troops as the nation had experienced in WW I. On the morning of June 9, 1937, the nation awoke to front page headlines in the top two columns of the New York Times that read “Birth Control Is Accepted By American Medical Body: Association Backs Doctors in Use of ‘Legal Rights’ on Contraceptive Advice.”
The body of the article explained that the association’s house of delegates – defined as “the supreme court of American medicine” – adopted two recommendations dealing with the issue. First, “that the American Medical Association investigate the various forms of contraception with a view to disseminating authoritative information on the subject to the medical profession”, and second, “that the association promote the teaching of proper methods of birth control in the medical schools.”
Labeling the action as “another landmark in the annals of American medicine,” they offered perspective noting that “For many years all efforts to gain official status for birth control, as a legitimate part of medical practice, have been bitterly fought and successfully blocked by powerful groups, religious and otherwise, within the ranks of American medicine.”
In the very next paragraph, the Times article asserted that, with this issue now out of the way, the delegates were focused on “the most important problem facing American medicine today” – whether to give official recognition to the principle that “the health of the people is the direct concern of the government, and that a national health policy directed to all groups of the population be formulated…Whatever the outcome, every one here realizes that organized medicine in America now stands at the crossroads and that it can no longer champion the status quo as it has done in the past.”
Roughly three decades later, on June 7, 1965, in a 7 to 2 decision titled Griswold v. Connecticut, authored by Justice William O. Douglas, the Supreme Court issued a 7–2 decision and struck down Connecticut’s last state law banning the sale and advertising of contraceptives.
In the Majority Opinion, Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
Griswold v. Connecticut became one of the most referenced landmark cases in history. All Americans now had their “sexual privacy” protected from government intrusion. As a result, a series of cases were successfully built on top of this precedent setting ruling. These included:
Eisenstadt v. Baird (1972) – Contraceptives for Single Adults.
Roe v. Wade(1973) – Abortion Legal in Non-viable Fetus.
Lawrence v. Texas (2003) – Texas Anti-Sodomy Law Unconstitutional.
Obergefell v. Hodges (2015) – Same Sex Marriage Legal.
When the Dobbs decision that effectively reversed Roe v. Wade was handed down, Justice Clarence Thomas in a concurrence statement wrote, “…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
In a Clarence Thomas world, historic precedent and scientific progress be damned. Bodily autonomy is a product of the state. Health is a luxury, doled out in small measure only to those who toe the religious party line.
Mike Magee MD is a Medical Historian and author of “CODE BLUE: Inside the Medical Industrial Complex.”