Response of Law to New Technology: Contraception

The rapid advances in science and medicine since 1950, and especially the advances in computer technology since 1980, have revolutionized the way society functions. It is widely recognized that our society is making a transition from the industrial manufacturing age to an information age. In contrast, the U.S. Constitution and most of our common law was written when people lived in an agrarian economy prior to 1850. Law has been slow to adapt to the choices posed by technology. While I believe that knowledge, opportunities, and choices are inherently Good, there are the possibilities of (1) prohibiting or restricting use of new technologies for no good reason or (2) of misusing technology to harm people. Law that made sense in 1850, or even in 1950, can be inappropriate for today's problems and opportunities. While I am personally enthusiastic about new ideas and change, it is important to recognize the reason that law is slow to change. One of the basic principles of jurisprudence is stare decisis: the old decision stands as a precedent for the present and future. Such a principle gives society stable law, so that attorneys can predict the outcome of a case and advise their client. Therefore, judges are reluctant to make new law.

In this essay, I briefly examine several situations in which new technology revolutionized society. In some of the situations, law was reactionary: law initially preserved the status quo. However, in a few situations (e.g., use of videotape recorders in the home), the U.S. Supreme Court quickly made the benefits of technology available to people. While this essay contains some citations to court cases in the USA, I provide neither a scholarly treatment nor legal advice, but only some observations and my personal opinions.

Contraception

In the years after the Civil War, there was a popular crusade in the USA against a variety of vices: pornography, abortion, contraception, prostitution, alcoholic beverages, etc. The result of this crusade was to attempt to legislate morality and compel everyone to obey one group's moral values. Federal law in the USA (so-called Comstock Law, first passed in 1873) made it a crime to: (1) sell or give away any contraceptive or abortifacient, (2) send through the U.S. Mail any contraceptive or abortifacient, or (3) import any contraceptive or abortifacient. See U.S. v. One Package, 86 F.2d 737, 739 (1936). "Every article or thing designed or intended for the prevention of conception or procuring of abortion" was banned from the U.S. Mail by the Comstock Law, together with "obscene, lewd or lascivious" publications. See U.S. v. Chase, 135 U.S. 255, 257 (1890); Andrews v. U.S., 162 U.S. 420 (1896). As a result, condoms were sold for prevention of sexually-transmitted disease (i.e., "prophylactics"), not as contraceptives.

Some state statutes, notably in Connecticut, prohibited the distribution of information about contraception and also prohibited the distribution of contraceptive devices or drugs.

The U.S. Supreme Court in a series of three famous decisions, invalidated laws making contraception illegal.

In Griswold v. Connecticut, 381 U.S. 479 (1965), the U.S. Supreme Court invalidated a Connecticut state law that prohibited use of contraceptives and also prohibited any person (including a physician or pharmacist) from giving advice about contraception. Because Griswold, who was director of a Planned Parenthood clinic and a professor at Yale Medical School, was giving married people information, instruction, and medical advice about contraception, this case is sometimes said to uphold the right of married people to have information about contraception.

In Eisenstadt v. Baird. 405 U.S. 438 (1972), the U.S. Supreme Court invalidated a Massachusetts state law that prohibited the sale or gift of nonprescription contraceptives. Because Baird gave a can of spermicidal foam to an adult unmarried woman, this case upholds the right of unmarried adults to use contraceptives.

In Carey v. Population Services International, 431 U.S. 678 (1977), the U.S. Supreme Court invalidated a New York state law that prohibited sale or distribution of contraceptive to people under the age of 16 years and also prohibited both advertising and display of contraceptives, even by pharmacists. Population Planning was a mail-order company in North Carolina that advertised contraceptives in New York state and sent contraceptives to residents of New York. This case upholds the right of minors to purchase contraceptives.

While I admire these three U.S. Supreme Court opinions, the obvious questions is "Why did the courts wait so long to invalidate these repressive, medieval laws?" The best answer that I can suggest is that all forms of contraception