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the Body Politic
Vol. 01, No. 10 - October 1991, Page 6
Copyright © 1991, 1998 by the Body Politic Inc.

Griswold V. Connecticut

The Battle Begins

By Anne Bower

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use.
Contraception is as old as the hills - at least as old as the desire for sex between men and women. Throughout recorded history, there have been attempts at preventing pregnancy by use of barrier methods, drugs, and wishful thinking.

In America, before the 1800's, control of reproduction by contraception or abortion was not a matter of national debate or Constitutional law. But between 1800 and 1900 the birth rate in America declined substantially and Motherhood became a national concern. In response to that situation, by the 20th Century, Motherhood was elevated to a "sacred science" and birth control and abortion were illegal.

Consequently, when Margaret Sanger opened her first birth control clinic in New York City in 1916, it was only a matter of days before the clinic employees were arrested and the doors closed. The history of birth control during the next decades is a fight for legalization of its distribution and use.

By the 60's, many forms of birth control were available from doctors, and in drug stores. The "Pill", thanks in part to Margaret Sanger, had been available for five years and American women flocked to its use. Birth control was available, unless you lived in Connecticut. Since 1879, that enlightened state had a law on the books which said:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned. Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender."

In fairness to Connecticut, it should be said that there was an effort in the Legislature to remove this nonsensical law from the books. However, the Supreme Court beat them to it.

The case, Griswold v. Connecticut was argued in March '65 and decided in June of the same year. The syllabus of the ruling explains the basic facts:

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute as applied violated the Fourteenth Amendment."

The ruling in this case is important for many reasons. It is the first time the "marital right of privacy" was clearly articulated by the Supreme Court. The concept of privacy as being an individual right granted in the Constitution, had been discussed in other cases. Larry Lader, in his book on RU 486 asserts that the right to privacy was first protected under English Common Law, the underpinning of our American system. Mr. Lader further states that future Justice Brandeis and lawyer Samuel Warren in a Harvard Law Review article in 1890 explored the "philosophic ramifications of privacy", defining it "primarily as the right of being left alone".

According to Mr. Lader, the Court seemed to be leaning to the Brandeis/Warren position with two rulings, Boyd v. United States in 1886 and Union Pacific Railway Company v. Botsford in 1891. The Boyd case was even cited by Justice Douglas who gave the majority opinion in Griswold. The Court clearly stated that if there was a "right to be let alone" it certainly should start in the marital bedroom. (This ruling was extended to unmarried people by the Eisenstadt v. Baird decision in 1972.)

The Griswold ruling is important for us today, because the early abortion law repealers used that decision as a wedge in the Court which culminated in Roe v. Wade in 1973. The right to terminate a pregnancy emanated from the right to privacy in sexual decisions. And it is Griswold that has withstood the efforts of the Reagan/Bush Justice (and I use the word loosely) Department who have tried to overturn Roe for years. In the government brief suggesting the overturn of Roe, filed by Solicitor General Charles Fried in Thornburgh vs. American College of Obstetricians and Gynecologists in 1985, the Griswold ruling was not attacked as an example of bad rulings on "unenumerated" rights. (In 1985, the marriage bed was off limits. In 1991, we must wait to see whether married couples will be secure in their persons in their bedrooms).

At the moment, Griswold stands as the first clear use of Constitutional Amendments to support reproductive rights. The majority and dissenting arguments in this case are still in use today as we battle for the right to keep abortion legal. Because of its special place in history, Griswold will be the first in a series of Supreme Court rulings on reproductive rights explored over the next months in the Body Politic.

Each of these cases will carry a brief explanation of its impact. The concurring and dissenting opinions will be excerpted to illustrate the conflicting arguments. The purpose of this series is to show where we have come from in hopes of guiding us through where we are going. There are common themes that run through the Court's struggle with this issue that are important for all activists to understand as they struggle with how to keep abortion legal.

The central issue in Griswold is the articulation of a "penumbra of rights" of privacy that emanate from the 1st, 3rd, 4th, 5th, and 9th Amendments, and whether the State violated the Due Process Clause of the 14th Amendment with its prohibition of the use of birth control by married persons.

N.B. As you read the opinions you will not find any reference to women's rights and only one tiny reference to health concerns.

Majority Opinion

Justice Douglas wrote the majority opinion and addressed the issue raised by appellants as to whether the anti-birth control statute violated the Due Process Clause of the 14th Amendment. He declined to find for the appellants solely on those grounds but drew his justification from the 1st Amendment, which he stated deals, not only with the right of free speech but,

"...the right to utter or to print, ...the right to distribute, the right to receive, the right to read."

This includes the right to "associate" for those and other purposes -- a right which has been protected numerous times in other court decisions. Justice Douglas then asserts,

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy."

Then he goes on to say that the 3rd, 4th, and 5th Amendments also contain implied areas of privacy for individuals. His conclusion is that the present case is a "relationship lying within the zone of privacy created by several fundamental constitutional guarantees." Justice Douglas philosophizes that,

"Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."
"I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law."

Justice Douglas states that the statute making the use of contraceptives illegal has a destructive impact on that relationship, even though the stated purpose of the statute was supposedly to prevent illegal relations between unmarried persons. The state may not "invade the area of protected freedoms" to control an activity it has a right to regulate. He posits a scenario of allowing the "police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives", and finds it "repulsive".

For these reasons, Justice Douglas struck down the Connecticut law.

Justice Goldberg, in a concurring opinion, states that the concept of Liberty "embraces the right of marital privacy" even though that right is not explicitly mentioned in the Constitution. He uses as his guide the 9th Amendment which states,

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

This amendment, added to the Constitution by James Madison, attempts to quell fears that the mention of certain rights does not mean that other rights will unprotected. Justice Goldberg see this as an attempt to balance the rights of individuals as against those of governments.

Dissenting Opinion

Justice Black stated first that the statute was as offensive to him as to the majority Justices, but evil as it was, he could not find it unconstitutional. He asserts if the defendants had just "talked" about birth control he could see no reason why their "opinions" would not be covered by the 1st Amendment. However, they engaged in activities forbidden by the law and he is,

"...unable to stretch the Amendment so as to afford protection to the conduct of these defendants in violating the Connecticut law."

As far as the "right of privacy" is concerned, he concedes that there are,

"guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities."

However, Justice Black laments that First Amendment freedoms have suffered because the courts have not stuck to its simple language. He finds no emanation of the "right of privacy" from constitutional provisions and complains,

I like my privacy as well as the next one, but I am nevertheless compelled to admit the government has a right to invade it unless prohibited by some specific constitutional provision."

Incidentally, it should be noted that Justice Black used as a footnote in his dismissal of the concept of "right to privacy" the article written in 1890 by Brandeis and Warren. He claims that the right used to settle cases in tort law should not be elevated to the level of a constitutional rule.

Justice Black also takes strong issue with Justice Goldberg's use of the 9th Amendment to strike down state legislation which,

"violates fundamental principles of liberty and justice, or is contrary to the traditions and collective conscience of our people."

The Framers never vested such awesome power in the Court. Indeed that Amendment was passed to,

"...limit the Federal Government to the powers granted expressly or by necessary implication."

Consequently, the 9th cannot be used by the Federal government to keep States from "passing laws they consider appropriate to govern local affairs." Here we see one of the great tensions between Justices - the balance of the powers of the States against those of the Federal Government. Allowing the Court to strike down State legislation because it is "unwise or unreasonable" will amount to a great unconstitutional shift of power away from the States.

Majority Opinions

He states that the 9th Amendment,

"...shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive."

Justice Goldberg also takes exception to Justice Black's assertion that this interpretation of the 9th Amendment expands the powers of the Supreme Court. He says it only affirms what the Court does in protecting fundamental rights.

"To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth and to give it no effect whatsoever."

Justice Goldberg does not believe in the dissenters' opinion that States have the right to "experiment" on the rights of its citizens. He believes that if a law outlawing voluntary birth control is valid, then one mandating compulsory birth control or sterilization could be enforceable too. The States cannot show that any of these laws would serve a compelling State interest.

Justice Harlan in his concurring opinion, unlike Justice Douglas, uses the Due Process Clause of the 14th Amendment to substantiate his ruling. He raises the issue of the meaning of the 14th Amendment, which forbids any State to "deprive any person of life, liberty, or property, without due process of law." He believes that this Connecticut law can be struck down because it "violates basic values implicit in the concept of ordered liberty."

In finding that the law does violate liberty, Justice Harlan raises again the great debate over "judicial restraint" - does use of the Due Process Clause give judges the right to put their personal interpretation on the Constitution? According to Justice Harlan, judicial restraint,

" ...will be achieved in this area...only by continual insistence upon respect for the teaching of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great role that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms."

Justice White also concurs that the 14th Amendment supports the overturn of the ban on the use of contraceptives because there is a "realm of family life which the state cannot enter without substantial justification." His opposition to this law is based on the simple fact that its stated purpose, to prevent illicit sexual activity, is not achieved by preventing married couples from using birth control.

"I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law."

Dissenting Opinions

Justice Black is also concerned that if his brethren's opinions hold sway states will not be able to draft any laws restricting "liberty" as defined by Supreme Court Justices who will be reduced to taking a Gallup poll to find out the "collective conscience of the people." He has little expressed concern for individual rights but fears the "unrestrained and unrestrainable judicial control" over legislative enactments.

As to the notion that the Court is there to keep the Constitution in "tune with the times", Justice Black asserts,

"For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being some what old-fashioned I must add it is good enough for me."

Because Justice Black sees no clear attack on the Constitution from the Connecticut law he would vote to affirm.

Justice Stewart in his dissent addresses the arguments of the majority and their use of the 1st, 3rd, 4th, 5th, 9th and 14th Amendments. He begins by stating that the 1879 Connecticut law is "uncommonly silly", and as a practical matter, unenforceable, except in the particular case before the Court. He also believes philosophically that the use of contraceptives is a matter of "personal and private choice" and that counseling about birth control should be available to all. However, he cannot hold that the law violates the Constitution.

When looking at the 1st, 3rd, 4th, 5th and 9th Amendments, Justice Stewart finds nothing there to invalidate Connecticut's law, and finds it especially troubling that the Court would use the 9th Amendment to overturn a State law.

Justice Stewart has raised the crucial issue of whether those amendments even apply to State government. The debate has raged for years that the Bill of Rights simply was a check on Federal government powers, not those of the States.

"But the Court has held that many of the provisions of the first eight amendments are fully embraced by the Fourteenth Amendment as limitations upon state action..."

As far as the 14th Amendment goes, he sees no claim the law is unconstitutionally vague, or that appellants were denied any due process at their trials, therefore Due Process is not a "proper instrument" for overturning this law.

He ends his dissent by saying it is the "essence of judicial duty to subordinate personal views" on legislation, and if the people of Connecticut do not like the law, they can persuade their representatives to repeal it.

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This archive is hosted by
Political Research Associates on its Public Eye website
The material posted here is not current