Social conservatives are targeting the underlying framework of Eisenstadt v. Baird (1972). One of the less well known birth-control Supreme Court cases, Eisenstadt established that unmarried women and men have a right to use birth control. Jonathan Moreno and Francis Killing have a good analysis over at The Nation:

In Liberty and Sexuality, [historian David] Garrow quotes extensively from conservative commentators who claim that Eisenstadt was intended to legitimize sexual liberty and to extend separate the privacy right from marriage and family. Privacy, up to then, was essentially a patriarchal concept with the family as the property of the husband. Limbaugh expresses the same sentiment in cruder ways. Sexually active women who are freed from the fear of pregnancy are “sluts.” Had Sandra Fluke, the 30-year-old single Georgetown Law student, been married, would Limbaugh have ranted that she wanted us to “pay for her to have sex?” We doubt it.

(Just days later Limbaugh wondered about Tracie McMillan who had just won a literary prize: “What is it with all these young single white women? Overeducated doesn’t mean intelligent.”)

Indeed, the opposition to the Affordable Care Act’s no-cost birth control mandate is not actually about contraception or religious freedom but about sexual liberty. Garrow notes that several of the clerks for the Eisenstadt justices suspected sexual freedom was as much a part of the thinking of the justices as was the shadowy penumbra of privacy rights that were explicitly cited. It is about those whose consensual sexual unions are not legitimized by a state or sanctified by a faith.  Today more women are simple eschewing marriage or postponing it, as well as postponing childbearing, than ever before, yet a simmering unease about unmarried sex remains.

h/t Sarah Posner


  1. Matt March 21, 2012 at 11:08 am | #

    Reading your posts brings Margaret Atwood’s classic “The Handmaid’s Tale” to mind. Although I tend to think things aren’t yet so extreme in the culture wars, they definitely seem to be entering a hotter phase, undoubtedly because the GOP has begun playing to its cruder base, thus giving tacit acquiesce to extremist expressions of evangelical patriarchy. It makes the Republic of Gilead seem closer than ever before.

  2. Chase March 21, 2012 at 12:23 pm | #

    Eisenstadt v. Baird? For the extremists you have in mind, that’s just one hurdle along the way toward overturning Griswold v. Connecticut. Methinks they’re more ambitious than you give them credit for. First, it’s not the accessibility of contraceptives for unmarried people that bothers them so much as contraceptives, period. This lines up more neatly with the law at issue in Griswold. Second, you’re not likely to find much support among them for a right to privacy, which the Court first upheld in Griswold. The more authoritarian and traditionalist the personality, the more a right to privacy seems threatening to social order.

  3. troy grant March 21, 2012 at 3:35 pm | #

    Arguing over which Republican Presidential candidate is the most conservative is like arguing over which is the most moronic, Curly, Moe or Larry.

    “One can’t say that all conservatives are stupid people. One can say that all stupid people are conservatives.”
    John Stewart Mill

    • Corey Robin March 21, 2012 at 3:44 pm | #

      That’s not what Mill said. The correct quotation is: “I did not mean to say that the Conservatives are generally stupid. I meant to say that stupid people are generally Conservative.” And it’s John Stuart Mill, not John Stewart Mill. And I’m not a fan of the quote: your version or Mill’s. It’s needlessly nasty and in all likelihood untrue.

      • BillW March 21, 2012 at 5:25 pm | #

        Mill himself does not come across as a particularly bright fellow in his voluminous writings on the lesser breeds such as denizens of India or Jamaica:

        To civilize a savage, he must be inspired with new wants and desires, even if not of a very elevated kind, provided that their gratification can be a motive to steady and regular bodily and mental exertion. If the negroes of Jamaica and Demerara, after their emancipation had contented themselves, as it was predicted they would do, with the necessaries of life, and abandoned all labor beyond the little which in a tropical climate, with a thin population and abundance of the richest land, is sufficient to support existence, they would have sunk into a condition more barbarous, though less unhappy, than their previous state of slavery. The motive which was most relied on for inducing them to work was their love of fine clothes and personal ornaments. No one will stand up for this taste as worthy of being cultivated, and in most societies its indulgence tends to impoverish rather than to enrich; but in the state of mind of the negroes it might have been the only incentive that could make them voluntarily undergo systematic labor, and so acquire or maintain habits of voluntary industry which may be converted to more valuable ends.

  4. Dr. Richard Beck March 21, 2012 at 3:59 pm | #

    Thanks Corey. It had not occurred to me that what you are saying may indeed be the case. It makes sense on second thought, however, it seems insane to me that Republicans are so anachronistic. On the other hand, it does “fit the data”. In fact it explains the facts very well indeed. I was 15 in 1960, and I had assumed that we left that kind of nonsense well behind us. But looking at Santorum’s positions on things, perhaps I ought to rethink where the Republican base is…I’m speculating that they are stuck in the 18th century. Dr. Richard Beck

  5. nbh March 22, 2012 at 4:06 pm | #

    John Stuart Mill (like his contemporary Alexis deTocqueville) despite his status as the “talismanic liberal” was not interested in equality whether it be with the lower classes or “backward” races. The moniker “liberal-conservative” seems like a more apt description of these defenders of hierarchy (Mills was contemptuous toward Scottish Highlanders, Welshmen, and other “half-savages” with Jamaicans and Indians coming well down the totem pole).

  6. William Baird August 20, 2012 at 2:55 am | #

    For those interested in history of Eisenstadt v. Baird, Mr. Bill Baird at 80-years-old continues activities in defense of reproductive rights.

    Julian Praxis
    Pro Choice League

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