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

By Edward Martin, Michael Martin, and Mateo Pimentel

Published on September 19, 2015


Under the Patient Protection Affordable Care Act of 2010 (ACA 2010), for-profit businesses, companies, and corporations are required to provide full contraceptive health care coverage for their employees despite religious objections from owners.

Lawyers for the Obama administration sought clarification from the Supreme Court as to whether or not for-profit corporations can claim a religious exemption to the contraceptive mandate. At the time, Solicitor General Donald Verrilli characterized this issue as one of “exceptional importance” in need of a precise legal remedy since employers were suing the government arguing that the “exemption” part of the law violated their religious liberties.

Included in Obamacare coverage was the “morning after pill” which some believe to be an abortifacient. Under this legal claim to exemption, employers have had some success suing in court based on religious grounds, specifically under the “freedom of expression” clause in the first amendment. As the plaintiffs, business owners have argued that the government is forcing them to subsidize birth control and in some cases abortions which they argue violates their religious beliefs and free exercise. Thus the plaintiffs claim that the Religious Freedom Restoration Act of 1993, (RFRA) which was a law intended to strengthen religious liberty, supports a business owner’s right to refuse contraceptive coverage.

One of the plaintiffs who challenged the mandate is Hobby Lobby Stores, Inc., an Oklahoma based family business owning a chain of arts and crafts stores throughout the United States in Burwell v. Hobby Lobby Stores, Inc., June 30, 2014. Hobby Lobby won a preliminary decision in the United States Tenth Circuit Court in Denver. This ruling was then overturned by the United States Third Circuit Court in Philadelphia and the Sixth Circuit Court in Cincinnati. Nevertheless, what the case has brought to light are two significant legal issues as to whether a for-profit corporation as a “person” can be: (1) protected under religious freedom laws; and (2) categorized as a religious entity entitled to freedom of expression rights. Hobby Lobby argued that because they possess legal personhood as a family business, their religious beliefs which are in opposition to artificial contraception and abortion, deserve protection under the “free expression” clause of the First Amendment. On the other hand, the Obama administration argued that it is “unprecedented” for a court of law to extend religious exemptions to corporations. In fact, no court has ever accepted a claim under RFRA guidelines where for-profit businesses and employers are exempt from employment regulations. Legal cases involving corporate employers are separate from lawsuits involving religiously affiliated schools and hospitals. Yet Hobby Lobby argued that the government was taking the position that private individuals apparently lose their religious freedom when they run a business or corporation.

In a separate ruling an appeals court sided with an Ohio business owner who also challenged the birth control mandate under Obamacare. Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics of Sidney, Ohio, challenged the religious mandate. In Francis A. Gilardi, et al., v. United States Department of Health and Human Services, 2013, the Gilardis claimed, much like the Greens in the Hobby Lobby case, that the mandate providing artificial contraception and the morning after pill to employees would compel them to violate their Roman Catholic religious beliefs. Writing for the majority, Judge Janice Rogers Brown wrote that the birth control mandate “trammels” the First Amendment right to the “free exercise” of religion which she identified as a legal right at the heart of fundamental constitutional liberties, reaffirmed in RFRA 1993. Brown reasoned that the Gilardis were being pushed into a Hobson’s choice where “they can abide by the sacred tenets of their faith, pay a penalty of over $14 million and cripple the companies they have spent a lifetime building, or they can become complicit in a grave moral wrong.”


The two cases, involving the Greens and Gilardis, Burwell v. Hobby Lobby and Gilardi v. USDHHS, identified the issue of whether or not a corporation, instead of individuals, can claim a religious freedom of expression exemption. In 2010, in the campaign spending case known as Citizens United, the Supreme Court ruled that corporations have rights to speech protected by the First Amendment, but they have never ruled on a for-profit corporations claim as a person with religious beliefs. After the Hobby Lobby decision the Obama Administration appealed to the Supreme Court, arguing that a for-profit corporation has never been granted religious rights. Doing so would set a dangerous legal precedent that would permit companies to limit or disregard many legal rights of workers based on ownership’s religious beliefs. Nevertheless, Obama Press Secretary Jay Carney argued that the contraception mandate as it relates to for-profits corporations “seeks to ensure that women and families, not their bosses or corporate CEOs, can make personal health decisions based on their needs and their budgets.” Moreover, women’s rights advocates such as Planned Parenthood argued that mandatory birth control benefits are vital to women’s freedom and economic well-being since an unwanted pregnancy can economically devastate a woman and her family. Nonetheless, defenders of religious rights argued that family-run businesses are only acting on their owner’s religious convictions, and should not be unduly burdened in their free religious expression argued for the majority by Justice Samuel Alito, according to Notre Dame Law Professor Richard Garnett. The Supreme Court, however, rejected this view in a 1990 opinion by Justice Antonin Scalia who argued that while the First Amendment protects the free exercise of religion, it does not give believers a right to ignore laws that apply to everyone, specifically in this case two Native Americans who were fired for ingesting peyote on religious grounds.

In reaction to this decision, Congress passed the Religious Freedom Restoration Act in 1993, which tipped the balance in favor of religious claims. It states that government “shall not substantially burden a person’s exercise of religion,” except to further a compelling interest. In the Hobby Lobby case, the U.S. Tenth Circuit Court of Appeals in Denver took the position that if corporations had free speech rights in politics, then they should also have similar rights to religious freedom. The U.S. Seventh Circuit Court of Appeals in Chicago adopted this same view. But the Third Circuit Court of Appeals in Philadelphia took the opposite view in ruling against Conestoga Wood Specialties Corp., run by a Mennonite family, arguing that a for-profit secular corporation may not engage in the exercise of religion. The implications of granting free expression exemptions to for-profit corporations, demands serious consideration. A decision such as the Hobby Lobby case could potentially open the door to an assortment of new religious freedom claims specifically from owners of corporations who object to laws mandating, not just contraception, but for example, equal treatment issues regarding hiring, firing, etc., based on race, ethnicity, gender, sexual orientation, and political affiliation. The case of a New Mexico photographer, who objected to taking photos of a same-sex wedding and an Oregon business in preparing a cake for a same-sex wedding, has already demonstrated that discrimination against gay couples is illegal. While same sex marriage is now legal in the U.S., some businesses and government agencies are not complying with this law with respect to conducting business or issuing marriage licenses.

Still the Obama Administration described contraception as necessary preventative health care for women and said its availability would help reduce unwanted pregnancies and abortions. U.S. Solicitor General Donald Verrilli Jr., argued that such a ruling would set a dangerous precedent if the Supreme Court were to allow corporate owners to cite religious views as a basis for ignoring or avoiding federal laws governing the workplace. Employers would be more than justified in making similar arguments in the name of religious liberty claims. A broad ruling could theoretically open the door for a Christian business owner to refuse service to gays and lesbians, or a Muslim-owned business to turn away women deemed “immodestly” dressed. Judge Ruth Bader Ginsburg noted the case turns on the RFRA of 1993 and that the law states that government “shall not substantially burden a person’s exercise of religion” without a strongly convincing reason otherwise. She further argued that there should be no controversy over the interpretation of this law. RFRA was not intended to exempt for-profit corporations from complying with laws governing the workplace, but rather to exempt Native Americans from criminal prosecution for using peyote (an illegal drug) in their religious ceremonies. Ginsburg, on the same grounds, also rejected the argument that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which Congress passed to broaden RFRA guidelines, did not apply as well. The “broad reach” argument that Hobby Lobby lawyers used as a legal loophole to argue against mandated contraception did not pass the “strict scrutiny” test in constitutional law.

Confounding the issue at hand is the question of abortion. Federal law exempts for-profit corporations from paying for abortions through health coverage. But when private for-profit businesses provide preventative health care that includes twenty-four forms of birth control, four of which are known as abortifacients, is government then forcing these companies to provide abortions? From this a number of bioethical concerns can be raised. For example, how are abortion procedures different from contraception which simply prevents a potential fertilized egg (zygote) from becoming fertilized or implanting itself in the uterine wall? And if conception does mark the point at which human life begins, would it not constitute negligence by not ensuring that a zygote implant itself in the uterine wall of a host uterus?


The Hobby Lobby decision by the Supreme Court “broadens” the Obamacare religious exemption to include any commercial for-profit that: (1) clearly runs counter to what RFRA and RLUIPA was intended to do; (2) manipulates the First Amendment freedom of speech and religious expression clause by allowing for-profit companies to discriminate and deny people legal access to health care prevention; and (3) is based on the distorted legal precedent that people are corporations and their free speech and expression are violated as a result of mandating contraception which violates their religious liberties and rights.

Indeed five years ago the Court decided in Citizens United that corporations were “persons” for the purposes of free speech. That case opened the floodgates for unlimited corporate contributions to political campaigns. If corporations are “persons” with rights to free speech then they are also entitled to free expression based on the religious views of the corporation’s owners. Therefore corporations as persons, enjoy the same protections against the erosion of their religious beliefs like anyone else in society. Forcing a particular corporation to provide access to contraception would then violate the religious beliefs of that person/corporation and violate federal law. This constitutes the “fallacy of composition” because the First Amendment is conflated with health care contraception. The argument in Hobby Lobby is unsound and should therefore be rejected.

Other issues related to the logical structure of the Hobby Lobby rationale needs analysis. The substance of this argument is thus based on questionable premises. Simply because one clause of the First Amendment (freedom of speech) is interpreted one way, does not necessarily mean that all other clauses in the First Amendment (in this case freedom of expression) must be interpreted the same way. To be specific, the typically broad legal interpretation of freedom of speech does not imply that freedom of expression should be interpreted in the same broad context. In fact, freedom of expression might demand a more narrow interpretation. What should take place, theoretically, is the utilization of an interpretative method that attempts to ascertain which clauses should only apply in certain situations, to certain actors, given certain contexts. To transport one legal concept (freedom of speech) to an entirely separate area of social and legal applications (freedom of expression) is a non sequitur.

Moreover, not all organizations are the same in nature and structure specifically because for-profit commercial corporations have no legal status, under U.S. tax codes, identifying as a religious institution precisely because the very nature of a for-profit enterprise is that of financial profitability. A non-profit, 501(c) 3, is identified differently under U.S. tax law. For example, the Catholic Church as a non-profit charitable organization is entirely different, legally, from a corporate entity such as Microsoft: the former deals with private religious concerns and dogmas, while the latter deals with profit maximization. Financial institutions and for-profit corporations by according to federal law must provide the full range of health care coverage including contraception. Furthermore, as already argued, expanding the religious exemption to for-profit corporations that have nothing to do with religion (other than their owners have a set of religious beliefs) is a dangerous legal precedent to set regarding religious exemptions from federal law. If the Supreme Court allows an arts-and-crafts business to exempt itself from having to provide contraception to its workers because its owners believe contraception is immoral then any rationale can be used, theoretically, to disregard certain laws or even actively discriminate against any one person or group. What results is the use of the First Amendment to discriminate against others. And the RFRA and RLUIPA laws used in support of the Hobby Lobby decision are nothing more than “red herring” arguments. Freedom of speech and expression is meant for deliberative democratic discourse as defined by Cass Sunstein, within the nexus of the market place of ideas as urged by Oliver Wendall Holmes.

As a result of this analysis a number of questions emerge: (1) What is that nature of free speech and free expression since the Supreme Court has mistakenly interpreted the Frist Amendment? (2) Has the Supreme Court misidentified the issue in this case as, not one of free expression, but rather as a simple constitutional right to privacy? The next part of this investigation will address the nature of free speech and expression primarily through the lens of John Stuart Mill and then finally turn to the issue of privacy, in the writings of Louis Brandeis and Cass Sunstein, which arguably, is the proper conceptual framework needed to legally assess the contraception issue of for-profit corporations as persons with constitutional rights to free speech and expression.

Freedom of Speech and Expression: Mill

Over the past several decades, analyses of First Amendment issues have typically relied on the philosophical orientation of John Stuart Mill. His notions of freedom and liberty, within the tradition of liberal utilitarianism, have helped to define more clearly what is meant by freedom of speech and expression. This in turn has been incorporated into legal scholarship in the United States and deeper analyses of the First Amendment and the Bill of Rights. Mill’s concept of law and justice is a logical extension of his utilitarianism. In this tradition, Mill argues that whatever is good and desirable is what is best for the greatest number of people. Thus the “utility” of a specific moral act can be justified in order to promote the greatest good for the greatest number of individuals.

One criticism of this position is the problem within a democratic society of minority rights in a majoritarian system of governance. Mill’s position here seems to favor the majority, while at the same time individual freedoms are subsumed to the majority. Theoretically, a situation could develop in which the “public interest” or “public good” would better be served at the expense of a minority group or single person. For example, it could be argued that the public good demands the censorship of an individual’s freedom of speech since the given society/government believes it might harm the general population. Nevertheless, Mill understands this specific criticism of his position. And so Mill seeks to protect the rights of such minority individuals and their freedom of speech, since for Mill, “individual freedom” is the basic foundation of his notion of justice. It is precisely because of this problem that Mill attempts to salvage his concept of justice – individual freedom – based on what he defines as the “harm principle.”

The classic statement of this position is found in Mill’s On Liberty. For Mill, individual freedom translates into the right of each individual to be free to do whatever s/he wants to do (including freedom of speech and expression), as long as it does not interfere with the similar rights of others. In it Mill defends the rights of individuals and minorities against the potential tyranny of democratic majorities. This is because Mill foresees the problem that individual freedom can be threatened in a democracy just as easily as it is undermined in authoritarian and totalitarian states. Mill argues that individual liberty is to be considered inviolable except when other people are threatened with harm. Intervention in the form of societal influence or through lawful policy coercion is therefore justified in the protection and safeguarding of others. Thus Mill states that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

Mill thus attempts to identify the extent to which government and public interest have authority over individuals and individual action. If an action harms other people, or presents a public danger, then government does have a legitimate right and authority to prevent it or dissuade a person from doing it through social coercion, public policy, and law. But if an action is not harmful to others, the government has no such authority. However, at what point does the government, through social coercion or law, intervene, for instance, to prevent free speech from potentially harming others? To this problem, Mill distinguishes between “self-regarding” actions and “other-regarding actions.” A self-regarding action is one that is morally permissible as long as it does not harm anyone else while another-regarding action is one that is not morally permissible if that action causes harm to other persons. Consequently, a self-regarding action cannot be interfered with according to Mill, while other-regarding actions can be interfered with by societal coercion or law, or tolerated through some form of regulation.

Mill is particularly concerned with protecting individuals against “the tyranny of the majority,” and so the public interest may demand government interference or coercion to a certain “point.” That “point” (law’s ability to interfere with individual liberty) is still very difficult to define. And that point at which we define what is free speech or harmful speech, access to pornography or censorship of pornography, compelling business owners to do business with gays or lesbians or not compelling businesses, etc., is still a vexing issue. Compounding the issue even more are examples such as one in modern day Germany in which it is illegal for Holocaust deniers to speak out publicly. Nevertheless, to extend prohibitions on these actions may require some form of legal “paternalism” in which the government may have to decide not only how to prevent harm to others, but even limiting actions of individuals that do not cause anyone else harm, for example, the personal use of addictive drugs, which in turn could lead to harming others through DUI violations, drug related crime, and various public safety concerns. Nevertheless, while it may be the case that Hobby Lobby and conservative political operatives may be manipulating the first amendment’s free speech and expression clauses, it seems clear that the Hobby Lobby case has been misidentified. The issue is not so much freedom of speech and expression, but rather an issue of privacy when it comes to birth control and abortion in Burwell v. Hobby Lobby. Arguably, the Hobby Lobby issue should be argued within the context of “privacy” and the legal context of Griswold v. Connecticut, 1965.

Privacy: Brandeis

Over time, a broader right of privacy has been inferred in the Constitution, and generally understood to be protected by state common and statutory law. Around 1890, while not explicitly stated in the Constitution, Supreme Court Justice to be, Louis Brandeis, extolled “a right to be left alone” concept that has withstood the test of time. This right has developed into a Constitutional liberty based on the concept of individual and personal autonomy established and protected by the 14th Amendment. The First, Fourth, and Fifteenth Amendments also establish and provide protection of privacy, although in almost all cases this right is narrowly defined. The Constitutional right to privacy has developed simultaneously with a statutory right to privacy which limits access to personal information by others. Nonetheless, the right to privacy is ultimately reserved to the state’s jurisdiction based on compelling interests that include the promotion, and protection, of the common good.

Brandeis identified and defined modern notions of privacy rights in a manuscript published with his law partner, Samuel Warren, in the Harvard Law Review, December, 15, 1890, on “The Right to Privacy.” At the time Brandeis and Warren were reacting to, among other issues, “snapshot photography,” which was making its way into journalism by allowing newspapers to publish photographs and statements of individuals without obtaining their permission. They argued that individual privacy was being violated and that this violation weakened the “moral standards of society as a whole.” The manuscript identified a new legal concept that has basically endured the test of time. Based on laws of defamation, literary property, and eavesdropping, Brandeis argued that the major idea, though articulated explicitly, was an interest in maintaining the right to personal integrity, specifically “the right to be let alone,” that ought to be secured against invasion, except for a compelling reason to maintain public welfare. Brandeis recognized that deeply held beliefs, touching the most intimate dimensions of the human person was a positive expression of human nature, and as such an invasion of this inner dimension within the human person demanded legal protection against this form of invasion and repression of the human spirit. “The Right to Privacy,” according to legal scholar Roscoe Pound, was one of the most important legal documents written, arguing that it accomplished “nothing less than adding a chapter to our law.”

In his widely cited dissenting opinion in Olmstead v. United States, 1928, Brandeis relied much of what he developed in his 1890 Harvard Law Review article, “The Right to Privacy.” But in his dissent of Olmstead v. United States, Brandeis now intensified the focus on privacy whereby he argued that personal privacy matters are more intrinsically related to Constitution Law, and even going so far as to claim that “the government [was] identified … as a potential privacy invader.” At issue in Olmstead was the use of wiretap technology to gather evidence. Brandeis referred to this as “dirty business,” and then argued that civil privacy and the “right to be let alone” with a legal right related to the Fourth Amendment which counters unreasonable search and seizure. In succeeding years the right to privacy concept gained powerful support based on Brandeis’ dissenting opinion, specifically in the writings of Justice Frank Murphy and Justice Felix Frankfurter who referred to the Fourth Amendment as the “protection of the right to be let alone.”

With the growth of surveillance technology during the 1950s and 1960s, it took the heightened awareness of the Warren Court’s due process focus to overturn Olmstead in 1967. Justice Potter Stewart wrote the majority opinion overturning Olmstead in Katz v. United States. Then twenty-five years after his death, another dimension of Justice Brandeis’s privacy development was enshrined in United States law. Wayne McIntosh states, “the spirit, if not the person, of Louis Brandeis, has continued to stimulate the constitutional mutation of a ‘right to privacy.'” The influence of Brandeis has no doubt become manifest in major court decisions related to legal cases such as abortion rights to the “right to die” controversies. Other legal cases such as those dealing with a state ban on the dissemination of birth control information, and an individual’s “body,” not just her “personality,” as part of her right to privacy, all derive form Brandeis’ concept of privacy. In another case, Justice Harlan credited Brandeis stating, “The entire fabric of the Constitution … guarantees that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.” And the landmark case of Roe v. Wade, one of the most controversial and politically significant cases in U.S. Supreme Court history, the Court wrote, “This right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Birth Control and Privacy Rights

The power of the United States government over health care issues has been extensive at the federal level. Government can take action in matters that have direct influence on the public’s health; for example, epidemics, immunizations, etc. However, its authority is limited since its authorization to act is derived from the United States Constitution with subjection to Congressional approval and oversight. The rationale behind this is to ensure that public policy implements social arrangements that attempt to promote the common good. In general, the courts have suggested that there are limits on what the governments can and cannot do, especially with respect to public health since constitutional liberties are at issue. What has not been clear is the individual’s right to privacy. In this regard, the remainder of this investigation will focus on the development of the ‘right to privacy’ and the various implication of this right by examining the federal government’s authority related to sexual conduct, family planning, and other individual decisions. This will invariably address legal controversies between the state and the individual and how the right to privacy, in particular, has been recognized, applied, and redefined in Griswold v. Connecticut and Eisenstadt v. Baird.

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.

However, there are several provisions at the federal level which do protect certain aspects of privacy according to a more contextual interpretation of the constitution. As an example, the First Amendment protects freedom of association and the free exercise of religion from government coercion; the Fourth Amendment prohibits government searches and seizures unless certain conditions exist to protect the public: and the Third Amendment recognizes the significance of individual privacy by prohibiting the mandatory housing of military personnel in a citizen’s home. This has carried over into numerous cases in the early part of the twentieth century in which the Supreme Court held that the ability of parents to make decisions regarding their children was a form of “privacy” and under constitutional protection. But, it was not until 1965 that a general notion of the “right to privacy” and individual autonomy was recognized in constitutional terms. Even after this point was acknowledged, it nevertheless was constructed that rights were extended “to some but not all individuals and limits some but not all government activities that would limit or preclude those decisions.” In the United States, this problematic application of law was evidenced in matters dealing with sexual relations and the use of artificial contraception.

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.

When Griswold v. Connecticut was brought before the Supreme Court, the Court itself was divided regarding their rationale in favor of Griswold. In a seven-to-two decision, the Court reversed the criminal convictions and asserted that the Connecticut law as applied was unconstitutional. Justice William Douglas cited a list of constitutional rights that had been “recognized and protected by the Court, despite the fact that they had not been literally written into the provisions of the Constitution.” Justice Douglas reasoned from these precedents that, “the foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanation from those guarantees that give life and substance…Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen.” Justice Douglas also argued along these lines with respect to the Third Amendment (prohibition against the quartering of soldiers); the Fourth Amendment (unreasonable searches and seizures); the Fifth Amendment (self-incrimination); and the Ninth Amendment (certain rights and privileges shall not be denied – unenumerated rights). In the Fourth and Fifth Amendments, Justice Douglas further clarifies that these amendments were aimed at protecting against all government invasions “of the sanctity of a man’s home and the privacies of life,” and that they constitute a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” As a result, many controversies exist over such rights as “privacy and repose.” Thus, such cases signify that the right of privacy, especially in the case of contraceptive choice, is a legitimate right.

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 GriswoldGriswold 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.

Finally, the Court pointed out that in Massachusetts at the time, fornication was only a misdemeanor punishable by a $30 fine or ninety days in jail. If the purpose of the contraceptive law intended to prohibit premarital sex, it is rather strange that aiding the crime would be a serious felony while the crime itself would be a misdemeanor. As a result, the conclusion that the Court reached was that the real purpose of the statute was an attempt to prohibit contraception itself. Whether the state had the right to prohibit the use of contraceptives by unmarried people as immoral, was an issue the Court declined to address. Nevertheless, the Court supported the right to privacy stating that “… for the unmarried and married alike … If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

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

Access to affordable, quality contraceptives has a direct impact on women’s lives. In fact, modern contraception prevents 215,000 thousand pregnancy-related deaths – not to mention 2.7 million infant deaths – each year. This amounts to, in its finality, a savings of 60 million years of healthy human life. Contraceptives empower women and enable them to plan their families. This allows them to avoid the negative impacts on their health that unsafe abortions and unwanted pregnancies cause. Globally speaking, roughly 25 percent of pregnancies are unintended; this puts women at risk. More and more, studies show that properly planned pregnancies/births lead to healthier pregnancies/births and reduce maternal mortality rates. There is also a correlation between increases in contraceptives usage and decreases in abortions. The United Nations Population Fund (UNFPA) observes that young and poor women especially suffer from the aforementioned rates in mortality and abortion because their access to contraception is limited most.

Contraception also helps prevent maternal morbidity, which can stress families, devastate women, and is frequent and often underreported. There are at least 20 women who suffer long-lasting complications/illnesses/disabilities related to unintended/unwanted pregnancies and childbirths for ever woman that dies from pregnancy or childbirth complications. Unsafe abortions are a leading factor in complications that add to maternal morbidity; one in four women are hospitalized (or admitted to hospitals) after experiencing unsafe abortions. Access to contraceptives is a good strategy to help women escape unwanted pregnancies, involved complications from pregnancy, childbirth, and unsafe abortions. Empowering individuals with the ability to choose how many children to have also empowers them to be able to provide proper nutrition, housing, care and education, which impacts families in healthy ways. In decreasing maternal mortality and morbidity, contraception also helps lessen economic and psychological impacts wrought on families by maternal death or chronic illness. The secondary health-related benefits that pass on to children and families is a positive side-effect of contraception, which firstly promotes women’s/girl’s health.

The impacts of contraceptives and increases in female autonomy and social wellbeing is also important for society to progress. Studies instruct that contraceptives, in avoiding unintended pregnancies, can elevate women’s status and increase their capacity for decision-making within the home. Family planning also boost’s female self-esteem and quality of life, educational access, employment opportunities, and income-generation/acquisitive power. Contraception use can improve female access to education because unintended or unwanted pregnancies often force women/girls to quit their studies. The inability to fulfill academic potential has an unmistakable impact on the ability of women to perform a complete economic/social/political role within their communities, and it has a direct link to poverty. The effects of education are multigenerational; educated women will more likely have educated children, especially daughters. Furthermore, studies show that improved access to education, coupled with the use of contraceptives, makes women more active in the workforce, thus enhancing their earning power, their economic security and the wellbeing of their families.

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.


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 a 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 healthcare privacy rights, even though federal law has precedent over state and local government as in Griswold v. Connecticut and Eisenstadt v. Baird.

The Authors

Edward J. Martin, Ph.D. is a Professor of Public Policy and Administration, at the Graduate Center for Public Policy and Administration, California State University, Long Beach. His areas of research are in urban and international political economy, focusing primarily on issues of race, social class, inequality, and public policy. His publications appear in New Political Science, Contemporary Justice Review, International Journal of Public Administration, and Social Policy. He has received national and international recognition for Savage State: Welfare Capitalism and Inequality. Professor Martin received his Ph.D. in public administration and policy at Arizona State University in 2000. He has been teaching in the Master of Public Administration program at California State University since 2000.

Mateo Pimentel

Mateo Pimentelis a sixth-generation denizen of the Mexican-United States borderland. Mateo writes for political newsletters and alternative news sources; he also publishes in academic journals. Mateo has lived, worked, and studied throughout Latin America for the last decade. He currently pursues a Master of Science in Global Technology and Development, and he composes and records music in his free time.

Michael J. Martin is currently working on his Bachelor of Science in Earth Science at the University of California San Diego. With a focus on 1st amendment rights and environmental policy, he plans on pursuing a career in law.

Article picture: Pixabay.


Law & Philosophy