“A singularly intricate situation has developed in Washington”: Some Historical Background on Hobby Lobby

 

If Progressive Era birth control reformer Mary Ware Dennett hadn’t been cremated in 1947 immediately following her death, she’d be rolling over in her grave today. Monday’s Supreme Court decision in Sebelius v. Hobby Lobby Stores, Inc. (or Burwell as the decision was handed down) has abruptly called forward again the long legal story of the fight for reproductive rights. Other landmark cases along this path have included Griswold v. Connecticut (1965); Roe v. Wade (1973); Webster v. Reproductive Health Services (1989); Planned Parenthood v. Casey (1992), and somewhat more recently, Gonzales v. Carhart (2007). What’s Dennett got to do with all of this and why does it matter? We have to go back eight-five years ago to examine Dennett’s activism and her legal case, to understand the political background for Hobby Lobby.

Mary Coffin Ware Dennett was Margaret Sanger’s greatest rival, but she is little known today. Born in 1872 to a well-regarded Boston family, she was active in the suffrage, socialist and anti-war movements, but is best known for her work on birth control reform. She jointly founded the National Birth Control League, and its successor, the Voluntary Parenthood League. The goals of these organizations were to educate parents about sexual health and to lobby to remove contraception from federal obscenity laws.

For the better part of two decades, Dennett vocally and repeatedly called for the repeal of the provision of the 1873 Comstock Act that stated that birth control and contraceptive information was “obscene.” Part of the federal criminal code, it stated that contraception or printed material about it was considered “obscene, lewd, or lascivious” and were “non-mailable matter.” This was just one of the issues on which Dennett differed with Sanger, who was less interested in pursuing the legal reform route. The two women were also particularly divided on the role of physicians in governing the distribution of birth control devices and contraceptive information. Sanger ultimately pressed her case more successfully because she called for birth control information to be controlled by the medical establishment. But for a number of reasons, Dennett was far more suspicious of doctors. She knew she needed their help to make contraception seem legitimate in the eyes of the American public, but she deplored the idea of women at the mercy of their doctors’ whims and moral beliefs.

Her publication of The Sex Side of Life: An Explanation for Young People tried to place some of that control back into the hands of teenagers, women, and the larger public. Originally written in 1915 for her two sons, the pamphlet was a frank and explicit account of sex and human physiology. She began mailing her pamphlet to anyone who asked for it.

But in 1929, Dennett was federally indicted by the New York state Attorney General in the Eastern District of New York for violating the Comstock Law. The suit claimed The Sex Side of Life was “filthy, vile, and indecent.” She was found guilty and sentenced to pay a fine of $300. Dennett refused to pay the fine, and appealed her case. Long story short, the ACLU rallied to Dennett’s side during the case, as did much of the American public. By 1930, her conviction was overturned in a United States Circuit Court of Appeals for the Second Circuit. A landmark decision on censorship law, it was followed by other cases that finally exempted contraceptives from the realm of the “obscene.”

Of course Monday’s SCOTUS ruling was not about censorship or obscenity—it was about whether the company Hobby Lobby could exercise its religious freedom and be exempted from the Affordable Care Act’s clause regarding mandatory birth control coverage. After the 5-4 decision, which cited the 1993 Religious Freedom Restoration Act, Hobby Lobby can patently deny contraceptive coverage to its employees. (We’ll leave aside for the moment the ridiculous irony that Hobby Lobby has invested in companies that manufacture emergency contraception while claiming that they cannot provide it for their employees because of their religious conscience. That is another post about why this is mostly about the Right’s wish to undermine the ACA). The court cited the RFRA, arguing that forcing Hobby Lobby to comply with the ACA would substantially burden their free exercise of their religious belief that life begins at conception. The owners of Hobby Lobby—the billionaire Green family—are evangelical Christians, and believe that certain kinds of contraceptives are abortifacients, and thus instruments of fetal murder. As Justice Ruth Bader Ginsburg put it in her dissent—this is a decision of “startling breadth” in the larger context of women’s rights and control of reproduction.

United States v. Dennett and Hobby Lobby were decided on two very different legal bases more than three quarters of a century apart, but we can draw larger connections in both cases between the issues of obscenity, religious freedom, censorship and birth control. The historical connective tissue among these concerns and the two cases at hand is how the courts have constructed female legal personhood as most intimately connected to the sanctity of property.

In Dennett, the Court of Appeals reversal of Dennett’s conviction was grounded in the idea that she had venerated the “marriage relation and sex emotion” in The Sex Side of Life. Her pamphlet was “rational,” and “dignified.” Most importantly, Dennett herself was a sympathetic and publicly palatable figure. Despite the prosecution’s attempt to cast her as immoral, Dennett was a ladylike, grandmotherly Boston Brahmin and the idea that she could be lumped in with the other famous female “sex maniacs” of the day (like Ida C. Craddock or Madame Blavatsky for example) appeared ludicrous. Ultimately, these circumstances had the effect of helping to divorce contraception and birth control practices from ideas about morality, and set the stage for the victory of marital privacy rights in Griswold and Roe.

But in the intervening decades between Dennett and Roe, the rise of the evangelical Christian right has reshaped the fight to maintain the full legality of birth control and abortion. They have transformed early twentieth century arguments about social obscenity into something much broader. Instead, their position on reproduction—that life begins at conception, and it should not be medically prevented because it goes against God’s will—is based on a deeply rooted, Biblical-based vision of the family, and God and men’s position at the head of families. By linking the sanctity of the patriarchal family to the wealth and moral well-being of the State, the religious right has cleverly connected the idea of “religious freedom” and the sexual sanctity of women and the family to business policy and economic freedom.

In the end, this was a powerful influence on the reasoning for SCOTUS’ prevailing opinion yesterday. The upholding of religious freedom also cloaked a secondary goal of maintaining the sanctity of property rights—something the early twentieth century courts did with gleeful abandon. (I’ll leave it to my fellow labor historians to tease out the finer points of this in the other important SCOTUS decision yesterday Harris v. Quinn—a case that, as a friend pointed out, the feminist web has been curiously silent about, though it carries at least as many implications for women’s rights as Hobby Lobby). And while the legal reasoning surrounding the “corporations are persons” argument has incited feminist outrage, in the history of corporate law, this is nothing new.  While the Hobby Lobby decision reinterpreted the idea of corporate rights and religious liberty in a new way, the corporation as a social body with individual rights has been tested over and over in the courts. It is no surprise that the SCOTUS decision did not deviate from this established precedent.

 

By examining Dennett and Hobby Lobby together, it allows us to see how the transformation in thinking about birth control, abortion, women’s rights and reproduction has changed over multiple decades. Emma Green for The Atlantic has argued that religious liberty and contraceptive rights shouldn’t be framed as opposites. Yet this dichotomy ignores the fundamental connections between the Christian right’s idea of religious liberty and its deep connections to the economic function of the nation. In that sense, contraception is indeed directly counter to the evangelical idea of religious freedom, and as the Court ruled yesterday, to Christian corporations’ ability to function in the marketplace.

Further Reading

Constance M. Chen, The Sex Side of Life: Mary Ware Dennett’s Pioneering Battle for Birth Control and Sex Education (New Press, 1997);

John M. Craig, “‘The Sex Side of Life’: The Obscenity Case of Mary Ware Dennett,” Frontiers: A Journal of Women Studies 15, no. 3 (January 1, 1995): 145–66;

Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (Oxford University Press, 2010);

Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America(University of Illinois Press, 2002).

Laura M. Weinrib, “The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech,” Law and History Review 30, no. 2 (May 1, 2012): 325–86;

Leigh Ann Wheeler, How Sex Became a Civil Liberty (Oxford University Press, 2012).

A Note

The title refers to Dennett and the VPL’s efforts at getting the Senate to introduce a bill for the straight repeal of the Comstock Act.  Mary Ware Dennett, Confidential Report of the Voluntary Parenthood League (March 6, 1920), in the Madeline McDowell Breckinridge Papers, 1867, 1888-1923, 52M3, Special Collections, University of Kentucky, Lexington.

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Featured image caption: Bans Off Our Bodies. Wikimedia