Privacy, autonomy, and birth control in America, 1860-1900

Please note that this post is from 2016. Evaluate with care and in light of later events.

Access to birth control became, controversially, protected by the “right to privacy” in 1965;¹ a hundred years before, “procreation was a matter of public concern.”² Yet, contradictorily and confusingly, Victorian women — and their bodies — were protected (and limited) by a powerful social division between private and public spheres.

Birth rates drop in the 19th century

Women seeking to control their own fertility was not a new phenomenon in the nineteenth century, but it appears that it took economic arguments about population growth — like those of Thomas Malthus in 1803 — to propel information about such measures into print.³

Additionally, nineteenth-century medical science finally developed a recognizably modern explanation of reproduction, fertility, and fetal development,⁴ though such knowledge neither immediately found its way to the public at large nor resulted in immediate improvements to birth-control techniques. Still, knowledge of “[p]rophylactic skins for men and sponges for women,” amongst other approaches like coitus interruptus and, for the proper lady of the time, abstinence (a delicate matter when husbands were expected to be virile and sexually demanding).⁵

Whatever the challenges for women of the time in controlling her own fertility, the American birth rate dropped from its height in 1800, to half that in 1870 (at least for a middle-class white woman) — and would halve again by 1930.⁶

In America, the influx of new immigrants after the Civil War drove anxieties about controlling the “problem-makers of society, those who did not blend in as good servants or factory workers.”⁷ At the same time, concerns about the “slowdown in the birth rate” of “middle-class white wom[e]n” grew, contributing to lawmakers attempting to inhibit the distribution of birth-control information.⁸

Crossing the public/private boundary

Procreation was an area that crossed the boundaries of Victorian society. Women received highest level of privacy protection, being intimately (in the ideal mythology, if not in the messy class and race-influenced reality) bound to the home and the sacred domestic sphere. Simultaneously, however, a woman’s control over herself and her body — especially procreation — was subject to both her husband and to the public sphere more generally:

A woman’s body was both a private and a national commodity. If she took steps to control her fertility she entered into the public domain and came into conflict with laws governed by public interest. If she interfered with her husband’s right to her body, she offended him as a man and a potential father.⁹

Put in different terms, a woman’s informational privacy in Victorian America was carefully guarded; invasions of this “right to privacy” formed the rhetorical basis of Warren and Brandeis’ critical 1890 law-review article of the same name. On the other hand, her autonomy — the kind of privacy protected by Griswold and then Roe v. Wade — was severely restricted, typically being given over to male figures, or ignored entirely, depending on circumstances, class, and race.

What about the menz?

Men, who operated in the public sphere of work and politics, received fewer protections for their informational privacy, but through decisions like those that led to Lochner v. New York, received relatively high levels of protection of their autonomy and liberty (not always to their benefit).¹⁰

Furthermore, the sacred space of the domestic sphere, supposedly the domain of women, was also granted the highest protections from all forms of outside interference. As a result, whatever the rhetoric and mythology of Victorian domesticity, a husband who abused his wife within “their” home was protected by legal and social conceptions of privacy. His wife could only rely on privacy to help hide her sense of shame.

Procreation and the public welfare

Procreation affected women more than men, as “the risks of childbirth and the burdens of motherhood” demonstrated.¹¹ But whatever sympathy women received from “doctors, preachers, lawyers, and even most novelists” was limited in the face of “the public duty to reproduce”: “In the public eye, a woman who refused to give birth was like a man who refused to defend his country.”¹²

Furthermore, “birth control as an issue fell into the male domain.” That is, the husband was considered to control procreation and birth control any methods of birth control, not the wife — women were reduced to “advocat[ing] male chastity,” claiming ill health, retreating to separate bedrooms, or otherwise seeking abstinance-based methods.¹³

However sacred and inviolate the domestic sphere ought to be, given the prevailing view of the home as the seat of privacy and liberty, opponents of birth control nonetheless “intruded into the privacy of the bedroom.” Ogen suggests a similarity to the late twentieth century: “The voices raised against birth control,” she writes, “had much in common with those crying out against abortion today.” Even as sexual reproduction became understood scientifically and medically, “the distinction between sperm and fetus was nevertheless deliberately blurred so that … the use of contraceptives could therefore be called abortion.”¹⁴

Eugenics and the 20th century

The pro-procreation message was aimed at upper- and middle-class white women. The procreation of other races, ethnicities, and classes was considered a threat and limiting conception a potential solution.¹⁵

And as medical science delivered both methods for permanent sterilization and data-driven justifications for it, eugenics-based arguments that emerged in the early twentieth century rarely granted full choice to those they targeted, male or female. Compulsory, or at least coerced, sterilizations opened a whole new chapter in the birth-control debate in both the social and legal realms.

But regardless of class or other considerations, such matters were generally not considered part of the private sphere of women, at least in terms of autonomous and independent decision-making or control — despite the efforts of advocates like Margaret Sanger.¹⁶

Griswold in 1965 and Roe in 1973 marked a distinct shift in the law, but the continued controversies around both contraception and abortion suggest that American society has not yet settled the question of privacy, autonomy, and control over one’s own body, particularly when women are involved.