Government has regulated public access to contraceptives for centuries. During the nineteenth century, the distribution of contraceptives was regulated under the Comstock Act of 1873, which banned the sending of obscene and lewd material through the mail. In addition to pornography, these laws were extended to cover the transmission of contraceptives and information about contraceptives. Although the Comstock Act was upheld into the beginning of the twentieth century, social pressure and changing judicial attitudes eventually led to the laws being declared unconstitutional. In 1936, the US Court of Appeals for the Second Circuit declared in United States v. One Package of Japanese Pessaries that the laws could not be enforced so as to prevent the distribution of contraceptives. Thirty years later, the Supreme Court’s decision in Griswold v. Connecticut laid the old regulations completely to rest, with the Court stating that a law prohibiting the use of contraceptives was an unconstitutional violation of privacy.

Funding Restrictions

Beginning with the passage of Title X of the Public Health Service Act in 1970, the federal government began engaging in family planning policy and preventative sexual health care. The law is directed at providing healthcare support to low-income and uninsured families through the Office of Population Affairs (OPA) and the Department of Health and Human Services (HHS). Traditionally, Title X has provided access to FDA-approved contraception through state and local grants. The law also provides significant funding for Planned Parenthood, although several states have attempted to block this funding in recent years.

During 2011, the states of Kansas, Indiana and North Carolina passed legislation that would have cut off state funding to Planned Parenthood. Although these laws focused primarily on Planned Parenthood’s support of abortion services, loss of funding to the organization would also impact contraceptive services. The US District Court for the Southern District of Indiana initially refused to issue a restraining order to prevent enforcement of the state’s defunding effort, after Indiana Governor Mitch Daniels signed the act into law in May 2011. The US District Court for the Southern District of Indiana issued a temporary injunction against that state’s defunding effort in June 2011, after the US Centers for Medicare & Medicaid Services claimed that the legislation violates federal law. The injunction was appealed by Indiana Attorney General Greg Zoeller in August 2011. Similar injunctions were issued against the defunding schemes adopted in Kansas and North Carolina in August 2011. In May 2013, the US Supreme Court declined to review the Seventh Circuit decision upholding the injunction against the Indiana defunding bill.

Legal conflict over contraceptives has also subsumed the legal controversy over the Patient Protection and Affordable Care Act (ACA), which includes provisions that require insurance companies to cover the cost of contraceptives. This requirement has sparked heated disagreement, much of it fueled by the objection of religious institutions on the basis that providing funding for contraception contradicts their dogma. The ACA contraception requirements directly conflict with many state laws that allow insurance companies and religious institutions to refuse coverage of contraceptives on moral grounds. In February 2012, seven state attorneys general filed a lawsuit challenging the contraception requirement in the ACA and seeking to block its enforcement. In May 2012, more than 40 Catholic dioceses sued the US government over the ACA’s employer insurance requirements concerning contraception, alleging that the requirements violate their religious rights under the First Amendment.

On June 28, 2012, the US Supreme Court ruled that the ACA is constitutional, upholding almost the entirety of the law, including the controversial provisions related to contraception. In July 2012, the US District Court for the District of Nebraska dismissed a legal challenge to the ACA brought by state attorneys general on the basis of standing and ripeness. However, in December 2012, the US Court of Appeals for the Seventh Circuit temporarily enjoined enforcement of the ACA contraception provisions for a construction company owned by a Roman Catholic couple:

[T]he Kortes have established a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise. As such, the burden will be on the government to demonstrate that the contraception mandate is the least restrictive means of furthering a compelling governmental interest.

The contraception controversy has even reached the US Supreme Court, which denied a similar application for an injunction brought by the company Hobby Lobby, Inc., in December 2012. In response to the Supreme Court’s decision, both Hobby Lobby and Mardel, Inc. announced that they will refuse to comply with the Court’s order to provide their employees with contraception under the ACA. In May 2013, the US Court of Appeals for the Tenth Circuit heard Hobby Lobby’s arguments in favor of an exemption to the contraception coverage mandate, and in June 2013, the Tenth Circuit ruled in favor [PDF] of Hobby Lobby.

In response to the concerns of religious groups, the Obama administration announced in February 2013 that it would allow religious non-profits to opt out of mandatory birth control coverage when they provide heath care services. In March 2013, a federal judge struck down a Missouri law that required insurers to issue policies without contraception coverage if individual or employers had religious or moral objections because it conflicted with the contraception mandate of the ACA.

Emergency Contraception

Much of the legal controversy surrounding the use of contraceptives has revolved around Plan B. This contraceptive is an oral pill that can be taken to prevent an unwanted pregnancy within 72 hours after unprotected sex. It was approved for over-the-counter sale in August 2006, but the FDA limited access to individuals 18 years or older until a court order further lowered the age at which Plan B could be bought without a prescription to 17. Minors aged 16 years and younger must obtain a prescription for Plan B. There have been several legal challenges mounted against over-the-counter sales of Plan B, although none have been successful in overturning the FDA’s grant of approval. In March 2008, the US District Court for the District of Columbia dismissed a lawsuit filed by the American Association of Physicians and Surgeons (AAPS) that challenged over-the-counter sales.

In March 2009, Judge Edward Korman of the US District Court of the Eastern District of New York ordered the FDA to review its requirement that minors must obtain a prescription to purchase Plan B over-the-counter, and also ordered that Plan B be made available to 17-year-olds without a prescription. Judge Korman subsequently reopened the case challenging the prescription requirement, following the FDA’s decision not to change their age-based restrictions after US Department of Health and Human Services Secretary Kathleen Sebelius blocked an FDA recommendation to allow over-the-counter sale of Plan B without age restriction. In April 2013, Judge Korman issued an order [PDF] to the FDA to allow unrestricted over-the-counter sale of the emergency contraceptive, which the DOJ appealed. In June 2013, the Second Circuit rejected the DOJ’s request to stay implementation of Judge Korman’s ruling with regard to the two-pill version of Plan B. Shortly thereafter, the DOJ and FDA dropped their appeal of the ruling mandating over-the-counter sale of emergency contraception, and the FDA officially lifted the age restrictions on the drug’s sale.

Another heavily legislated legal area of contraception law relates to emergency medical services and sexual assault victims. Currently, the District of Columbia and 17 states, including California, New York and Pennsylvania, require emergency rooms to provide emergency contraceptives to sexual assault victims. Additionally, California, Connecticut, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, South Carolina, Utah, Washington, Wisconsin and the District of Columbia require hospitals to dispense emergency contraceptives to sexual assault victims upon request. However, there has been resistance to such laws, with the Massachusetts legislature overriding a gubernatorial veto in September 2005 to require emergency room doctors to offer emergency contraception to rape victims.

States have also passed legislation that relates to pharmacies and their duty to dispense emergency contraception. California, Illinois, New Jersey, Oklahoma, Washington, and Wisconsin require pharmacies to fill all valid prescriptions, regardless of individual ethical considerations. This legislative compulsion has been met with stiff resistance, such as when Wal-Mart was ordered by the Massachusetts Board of Pharmacy to carry emergency contraceptives in all of its state stores in February 2006. The Illinois legislature was forced to negotiate a settlement in October 2007 in order accommodate objecting pharmacists after it passed a law requiring that emergency contraception be made available to patients immediately. A separate group of pharmacists even challenged the same law before the Illinois Supreme Court in March 2008. The state of Washington’s emergency contraception law was similarly challenged in November 2007, but the US Court of Appeals for the Ninth Circuit ultimately upheld the law in July 2009.

Conversely, many states have passed legislation that generally limits access to emergency contraceptives. Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Maine, Mississippi, South Dakota, Tennessee and most recently Kansas have all passed laws that permit pharmacists to refuse to dispense emergency contraception on moral grounds.