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The Incoherence of Federal Sex Policy: Title X,Medicaid, and theEisenstadt Decision
“If the right toprivacy means anything, it is the right to befree from unwarranted governmentintrusions into matters so fundamentallyaffecting a person as the decision whether tobear or beget a child.”
Imagining that theCommonwealth of Massachusetts wascoercing her citizens to have childrenagainst their wishes, the
decisionstruck down a statute that had been amendedto comply with the requirements of
(1965). That earlier decision had demanded that states allow thesale of contraceptives to married couples, asthe Court held that prohibiting the use of contraceptive devices in marriage would bean unacceptable invasion of maritalprivacy.
, however, the Courtmoved to claim that “whatever the rights theindividual to access contraceptives may be,the rights must be the same for married andunmarried alike.”
rendering of a “right toprivacy” seems to stand for the position thatthe nation’s laws—like the one inMassachusetts that functioned as a sanctionagainst both sexual relations and procreationoutside of marriage—should not impose so-called “middle-class morality” on the lower classes. The government at all levels, it isclaimed, must remain absolutely neutral on“matters so fundamentally affecting aperson,” including sexual behavior,marriage, and childbearing decisions. Bycreating an unrestricted right for all citizensto use contraception regardless of maritalstatus,
is usually praised as anadvance for individual liberty against theintrusion and meddling of the state.Yet what one hand of the law appears togive, the other takes away. The same year the Court was demanding that thegovernment be neutral on sexual matters,Congress was authorizing Medicaid to addcontraceptives to its covered services to thelow-income population. Not as innocent as itappears, this expansion of Medicaid cannotbe understood apart from President RichardM. Nixon’s signing of the Family PlanningServices and Population Research Act of 1970, or Title X of the Public HealthServices Act, described by social historianAllan C. Carlson as “the first federalprogram openly focused on the promotion of birth control with the aim of sharplyreducing American fertility.”
In a very realsense, the new coverage made Medicaid, anentitlement program, subservient to thegoals of Title X. Within time, Medicaidwould become the largest federal supplier of contraception. In 2006, for example,Medicaid was responsible for more than 70