Developments in Birth Control Law

When the Supreme Court struck down a Connecticut state law that banned the use of contraceptives in Griswold v. Connecticut, it put reproductive rights and birth control laws at the forefront of America's conscience. What was once illegal, the use of contraceptives to prevent pregnancy now allowed couples to freely practice "safe sex" and control their decision whether to have children.

Since 1965, the Court has made clear that no person - whether married or single - may be prevented from using contraceptives, or otherwise burdened with state interference on the decision whether to have children. Even so, legal birth control methods have evolved from the simple male condom to the more advanced (and controversial) "morning-after" pill.

Below is a summary of legal issues around birth control since Griswold was decided:

Birth Control Laws and the 'Morning-After Pill'

Emergency contraception (EC) pills, also known as "the morning-after pill", became available in 1996 after the first over-the-counter pill that prevented pregnancy up to five days after sexual intercourse was approved by the Food and Drug Administration. The first EC pill was sold as "Plan B" (also known as the "morning-after pill") and approved as an over-the-counter emergency contraception for women over 18 years (women 17 and younger needed a doctor's prescription until a 2009 court order removed this restriction.)

Several states currently have emergency contraception laws on the books, and cover three main areas of legislative action:

  • Laws generally allowing emergency contraception
  • Laws requiring hospitals or health care facilities to provide information about and/or initiate emergency contraception therapy to women who have been sexually assaulted
  • Laws allowing pharmacists to initiate emergency contraception drug therapy if they are working with a physician, and/or after they have completed a training program in emergency contraception.

Birth Control and Parental Consent

Parent consent laws require federally funded clinics to notify parents if a minor wishes to obtain prescription contraception. The laws vary among the states concerning who may get contraceptive prescriptions and counseling from a health care professional and under what circumstances.

According to 2005 data, twenty-one states permit minors to obtain contraceptives services without parental consent. Twenty-five states permit non-parental consent under certain circumstances, such as if a physician determines a health hazard is present or if the minor is married. Finally, a few states have no explicit policy on parental consent laws on the books but these states typically allow physicians to decide whether or not to allow birth control to minors without parental consent.

While supporters of parental consent laws (usually parents of teens) argue that parents have the right to know about any significant sexual activity of their under-age teens, critics generally argue that the laws may actually increase sexual behavior among teens by requiring them to notify their parents of impending sexual activity.

Birth Control and Health Insurance

The refusal of health insurers to cover prescription birth control for women in their drug plans is hotly debated. In 1998, woman's rights advocates won a major victory that required insurance coverage of prescription contraceptives to all federal employees.

Both federal and states laws determine whether prescription birth control - such as oral contraceptives, diaphragms, IUDs, and Norplant -- are covered under a private employee's health insurance plan. Most states have laws promoting insurance coverage for prescription birth control. Many states, however, have yet to enforce some insurance company's reluctance to cover contraceptives.

Next Steps

Contact a qualified family law attorney to make sure your rights are protected.

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