Response of Law to New Technology: Contraception

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The rapid advances in science and medicine since 1950, and especially the advances in computer technology since 1980, have revolutionized the way society functions. It is widely recognized that our society is making a transition from the industrial manufacturing age to an information age. In contrast, the U.S. Constitution and most of our common law was written when people lived in an agrarian economy prior to 1850. Law has been slow to adapt to the choices posed by technology. While I believe that knowledge, opportunities, and choices are inherently Good, there are the possibilities of (1) prohibiting or restricting use of new technologies for no good reason or (2) of misusing technology to harm people. Law that made sense in 1850, or even in 1950, can be inappropriate for today's problems and opportunities. While I am personally enthusiastic about new ideas and change, it is important to recognize the reason that law is slow to change. One of the basic principles of jurisprudence is stare decisis: the old decision stands as a precedent for the present and future. Such a principle gives society stable law, so that attorneys can predict the outcome of a case and advise their client. Therefore, judges are reluctant to make new law.

In this essay, I briefly examine several situations in which new technology revolutionized society. In some of the situations, law was reactionary: law initially preserved the status quo. However, in a few situations (e.g., use of videotape recorders in the home), the U.S. Supreme Court quickly made the benefits of technology available to people. While this essay contains some citations to court cases in the USA, I provide neither a scholarly treatment nor legal advice, but only some observations and my personal opinions.

Contraception

In the years after the Civil War, there was a popular crusade in the USA against a variety of vices: pornography, abortion, contraception, prostitution, alcoholic beverages, etc. The result of this crusade was to attempt to legislate morality and compel everyone to obey one group's moral values. Federal law in the USA (so-called Comstock Law, first passed in 1873) made it a crime to: (1) sell or give away any contraceptive or abortifacient, (2) send through the U.S. Mail any contraceptive or abortifacient, or (3) import any contraceptive or abortifacient. See U.S. v. One Package, 86 F.2d 737, 739...

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...vely in the comic strip Dilbert, but the problem is real.

Most attorneys are extremely adverse to taking risks. The study and practice of law considers disputes between two parties. Often one party to the dispute has engaged in awful behavior: intentionally causing harm to another person, fraud, coercion, duress, threats, exploitation, alteration or destruction of evidence, "forgetting" unfavorable facts, .... A lawyer learns to structure advice so that, in the future, when the other party has behaved badly, the client will be in the best possible position to seek protection from a court, perhaps by enforcement of a written contract or estoppel. This cautious attitude of attorneys can pose problems to engineers and entrepreneurs who are excited about new ideas (such as marketing a new product), or clients who want to do something unconventional, where legal protections are uncertain. Furthermore, most people, including most attorneys, don't like to do creative thinking, because they are afraid of making a mistake or afraid of failing to find a good solution. It is a lot easier to say "NO!" than to design a way to accomplish an unusual or unconventional goal.

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