The Incoherence of Federal Sex Policy:

• Post by: Jennifer Roback Morse
• September 13, 2010

Title X, Medicaid, and the Eisenstadt Decision In a 1972 decision widely hailed by the political classes, the Supreme Court opined in Eisenstadt v. Baird, “If the right to privacy means anything, it is the right to be free from unwarranted government intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”[1] Imagining that the Commonwealth of Massachusetts was coercing her citizens to have children against their wishes, the Eisenstadt decision struck down a statute that had been amended to comply with the requirements of Griswold v. Connecticut (1965). That earlier decision had demanded that states allow the sale of contraceptives to married couples, as the Court held that prohibiting the use of contraceptive devices in marriage would be an unacceptable invasion of marital privacy.[2] In Eisenstadt, however, the Court moved to claim that “whatever the rights the individual to access contraceptives may be, the rights must be the same for married and unmarried alike.”[3] The Eisenstadt rendering of a “right to privacy” seems to stand for the position that the nation’s laws—like the one in Massachusetts that functioned as a sanction against both sexual relations and procreation outside of marriage—should not impose so-called “middle-class morality” on the lower classes. The government at all levels, it is claimed, must remain absolutely neutral on “matters so fundamentally affecting a person,” including sexual behavior, marriage, and childbearing decisions. By creating an unrestricted right for all citizens to use contraception regardless of marital status, Eisenstadt is usually praised as an advance for individual liberty against the intrusion and meddling of the state. Yet what one hand of the law appears to give, the other takes away. The same year the Court was demanding that the government be neutral on sexual matters, Congress was authorizing Medicaid to add contraceptives t