Is Contraception “Health Care”? The Hobby Lobby Case

Is Contraception “Health Care”? The Hobby Lobby Case

As we wait for the Supreme Court to render a decision on the Hobby Lobby contraception coverage case, I have been pondering the historical relationship between contraception and health care. Is it obvious that contraception should be considered part of “health care”? And would it be possible to decide that it isn’t, but still make it affordable and available?

This case seems, to me, to rest largely on whether we think contraception counts as health care. The justices are wary of an outcome that would allow employers to decline to pay for blood transfusions or routine vaccinations, even if an employer might genuinely have religious reservations about those procedures. Those are clearly health care. Contraception, though, seems different. It is prescribed for healthy people, and it does not cure or prevent disease (at least not directly).

Ortho tricyclene

Before we dismiss this argument as disingenuous excuse-making on the part of Obamacare’s opponents, it’s worth remembering that 1960s feminist health activist Barbara Seaman said it first. She felt that the birth control pill was foisted on women, with inadequate testing and false reassurances, by overconfident and condescending doctors. When it became clear that in some cases, birth control pills caused deadly strokes, she successfully pressed Congress to investigate. Seaman seemed ready to see the pill pulled from the market. The compromise was to create the first patient information insert for a prescription drug. Seaman and others held the pill to a higher standard than other drugs, not only because it affected millions of women, but also because she did not think the risk of getting pregnant was the same as the risk of becoming ill.

Thinking much farther back, before the nineteenth century contraception was certainly considered part of healthcare. Only it wasn’t exactly considered “contraception.” In early modern Europe and colonial America, mothers cared for themselves and their families when they were sick. Missing a period could be understood to be a sign of pregnancy, but it could also be read as a sign of illness. Depending on the circumstances, a woman might treat a missing period with herbs to try to bring on her menses, hopefully restoring her health. She also might take herbal remedies at the time of her expected period, as a way of staying ‘regular’ and preserving her health. Contraception was part of health care because it wasn’t explicitly considered contraceptive; it was folded into menstrual cycle health. And women generally took care of their own menstrual cycle health, unless they had problems beyond what they could manage, because that’s how they handled all health care for themselves and their families.

In the nineteenth century, contraceptive efforts became much more explicit. Birth rates fell dramatically. Couples used withdrawal, douching, condoms, and sometimes pessaries to try to avoid pregnancy. They still did not typically consult doctors for assistance, though, unless a woman was seeking an abortion. And in fact, many doctors were reluctant to provide abortions and had qualms about sanctioning birth control. In the 1870s, the Comstock Laws made it difficult for doctors to legally obtain and distribute contraceptive technology even if they were willing.

Left; Tin box containing Pennyroyal tablets Right; Paper covererd wood box with pills of unknown composition*
Left; Tin box containing Pennyroyal tablets
Right; Paper covered wood box with pills of unknown composition*

Contraception started looking more like modern medical care in the 1930s, when the Supreme Court protected doctors’ right to prescribe contraception as part of their patients’ care. There had been a cultural sea change by that time; the roaring twenties had made sex, and contraception, much more acceptable, and many doctors sanctioned marital use of birth control. Physicians prescribed diaphragms to many of their middle-class patients.

But the serious medicalization of contraception came with the birth control pill, in 1960. It was developed in a medical setting and resembled previous hormonal medical treatments. It was marketed as a prescription drug, and given widespread concern about short and long-term side-effects, it was decades before there were serious proposals to make it available over the counter. Even then, public health advocates argued that since women came in for pap smears and other annual preventive care in order to get their pill prescriptions, the pill ought to be kept prescription-only. It still is.

Birth control pills . (Flickr)

The pill was followed most notably by the intrauterine device, which requires some medical expertise for insertion and removal, and by surgical sterilization techniques, which require a great deal of medical training. At this point, most of the popular, effective contraceptive methods require a medical prescription or procedure.

So is current-day contraception “health care”? Some contraceptive techniques clearly can’t be removed from the medical system. For a vasectomy, you need a surgeon. If you can’t take the contraceptive technique out of the medical system, I don’t think you can take the insurance away from the contraceptive technique.

Other contraceptives, though, might become much more affordable and accessible if they were given some distance from the medical health care system, but still given public support. Birth control pills could be available over the counter. Specialized nurses could insert IUDs more safely than physicians who insert them only occasionally, since safety is based mostly on practice with the procedure. Planned Parenthood has found ways to provide contraception more affordably than private physicians’ offices, and they and other women’s clinics could do even better given more appropriate legal and market supports.

I would hate to see Hobby Lobby win this case. Women and their partners need access to good contraception, and given our current medical system, Obamacare’s mandate seems like the mostly likely way to provide it. But I would be even happier to see more forms of modern contraception truly under women’s control, accessible and affordable whether or not politicians are inclined to pass health care laws, employers are willing to provide insurance, or doctors are available to write prescriptions. Traditional forms of contraception were available to women (even when they were outlawed!) because they were not blocked by medical gatekeepers or outrageously expensive. I would like to see modern contraception similarly available. We can legitimately argue about whether contraception is “health care.” But there is no question that it is central to heterosexually-active women’s self-determination and well-being.


Featured image source: http://commons.wikimedia.org/wiki/File:Hobby_Lobby,_Trexlertown,_PA.JPG

*Image of 19th century female contraceptions and abortifacients courtesy of Case Western Reserve University: http://www.case.edu/affil/skuyhistcontraception/online-2012/19thCentury.html


Lara Freidenfelds is a historian of health, reproduction, and parenting in America. She is the author of The Myth of the Perfect Pregnancy: a History of Miscarriage in America and The Modern Period: Menstruation in Twentieth-Century America. Sign up for her newsletter and find links to her op-eds and blog essays at www.larafreidenfelds.com.

14 thoughts on “Is Contraception “Health Care”? The Hobby Lobby Case

    • Author gravatar

      Reblogged this on Knitting Clio.

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    • Author gravatar

      I fully agree with your post. I don’t think that we (America) should focus on the argument of the topic in regards to religion or ethics because that’s not what this is all about. You said it so well in your last sentence, “…it is central to heterosexually-active women’s self-determination and well-being.” Not only that, but it is the only way to reduce teen pregnancy when lectures of abstinence aren’t enough for teens. Safe sex needs to be taught, not the sin of sex, and better means of safe sex need to be provided.

    • Author gravatar

      I see contraception as a health care issue because there are great risks with becoming pregnant, even in this country. Risk to the mother in the form of related illnesses and the depletion of bodily resources that would normally go to the mother instead of a fetus. If pregnancy is treated as a health care issue, contraception, or prevention of pregnancy, should be a health care issue as well.

    • Author gravatar

      Oral contraceptives and IUD’s are often used for medical reasons in persons not requiring birth control and there are many medical reasons why an individual woman should not become pregnant. Sometimes her life is at risk. We should not allow these decisions to be made by anyone other than the woman in consultation with her health practitioner.
      The maternal death rate in this country is actually rising.
      And then there is the viagra comparison…

    • Author gravatar

      Every time I read about anti-choice legislation I feel strangers trying to own me. All of these strangers paying attention to my biology like I’m supposed to be shown off in a fair in hopes of making my owner happy with a blue ribbon…
      Whatever the personal specifics, to lose rights over our own bodies, equals slavery. The religious right is not about beliefs or health, it is about ownership. No woman worth her salt should agree to this deconstruction of her identity.

    • […] I criticized Hobby Lobby for its attempts to evade the Obamacare contraceptive mandate, a friend of mine […]

    • […] I criticized Hobby Lobby for its attempts to evade the Obamacare contraceptive mandate, a friend of mine […]

    • Author gravatar

      Please understand the case before you write a whole article about something you don’t understand. The case is not about contraception, it’s about the government forcing a company to pay for abortifacients, in which the company disagrees with. They currently pay for contraceptives and are not against paying for them.

      • Author gravatar

        Thank you for reading. Perhaps you will find that the new entry I posted today will answer your objection: https://nursingclio.org/2014/05/21/if-the-iud-is-an-abortifacient-then-so-is-chemotherapy-and-lunch-meat/. Let me know what you think.

        • Author gravatar

          I didn’t make an objection to any point in your article other than stating you don’t understand the case made by hobby lobby. After reading your article my statement stills stands. Your article is off on a tangent on equivocation of what certain things shouldn’t be labeled a abortifacients and how “contraceptives” which may cause an unintended abortion ought to ok; none of which is the crux of the case. Certain “contraceptives” do cause the unintended effect of abortion; some cause the intended back up effect of abortion. The court is not debating this. Your original article misrepresents what the case is about and the second editorial has nothing to do with the case. Please actually read the brief filed on behalf of hobby lobby. If you already read it you don’t understand what the case is about. I’m not arguing against any of your points, I’m saying you are arguing points that are not before the courts.

        • Author gravatar

          I see your objection. You are right, the case as the Supreme Court is deciding it rests purely on whether Hobby Lobby can refuse to provide specific kinds of health care based on its first amendment right to religious freedom. If it had said that it worshiped Martians and the Martians banned appendectomies and therefore it wouldn’t provide insurance for them, theoretically this case could still be happening. But in fact, a case about Martians and appendectomies would have no cultural traction, and would be unlikely to have reached the Supreme Court. This case has cultural traction because we have a history of an uneasy relationship with contraception. In some of its discussion, the Court made it clear that at least some members had a different intuition about the case when it considered it in light of the potential for refusing to cover vaccination and blood transfusion (see http://www.npr.org/2014/03/25/294385167/birth-control-mandate-goes-under-high-court-microscope) The intuition was that it would be much more clearly problematic to let companies refuse to cover these less-political medical procedures. I was using the case as an opportunity to observe our historically uneasy relationship with contraception, and how it is currently playing out in broader cultural debates about how we get health care and how we get contraception.

    • […] two types of birth control in question, emergency contraceptives (such as Plan B or Ella) and intra-uterine devices, prevent the […]

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