Robbins: A short history of Griswold v. Connecticut
Last week, I penned a column about the seminal Roe v. Wade case and how the recent Alabama and Missouri laws pertaining to abortion aim to unsettle it. In that column, I noted that the Supreme Court’s 1973 decision was founded upon an implicit right to privacy secured within the protections of the 14th Amendment. What I didn’t say is that, at least in part, Roe devolved from an earlier case, the case of Griswold v. Connecticut.
As discordant as it may sound to modern ears, Griswold was about birth control.
The anti-birth control statute in Connecticut dated from the late 1800s. Connecticut was not the only state with such antiquarian statutes. Although the law was only rarely enforced, challenging it — and other laws like it — was important to women all over the nation. How could they ever enjoy fully equal rights if they were denied control of their own reproductive lives?
A bit of context is important.
The first birth control pill became available in 1960. In that year, Envoid was approved by the US Food and Drug Administration (FDA) as the first oral contraceptive. This, the thinking went, might be a game-changer. Women’s rights activists were fired up.
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Enter Griswold
Estelle Griswold was the executive director of Planned Parenthood of Connecticut. Along with Dr. C. Lee Buxton, a licensed physician and professor at Yale’s medical school who was the Medical Director of the Planned Parenthood center, Griswold opened a birth control clinic in New Haven, Connecticut. The two operated the clinic from November 1, 1961 until they were arrested on November 10, 1961.
As a quick historical aside, Planned Parenthood was founded in Brooklyn, New York, in 1916. Yeah, really.
The Connecticut law prohibited the use of birth control, providing that:
Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than 50 dollars or imprisoned not less than 60 days nor more than one year or be both fined and imprisoned.
It also punished those who provided birth control:
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.
Griswold and Buxton were tried and found guilty of being accessories to providing illegal contraception. Each was fined $100.
The two appealed to the Supreme Court of Errors of Connecticut, claiming that the law violated the U.S. Constitution. The Connecticut court upheld the convictions. Griswold and Buxton then appealed to the United States Supreme Court, which at last reviewed the case in 1965.
Appealing to the Supremes
Writing for the majority, Supreme Court Justice William O. Douglas authored the Griswold v. Connecticut opinion. He emphasized that the Connecticut statute prohibited the use of birth control between married persons. Therefore, the law dealt with a relationship “within the zone of privacy” guaranteed by constitutional freedoms. The law did not just regulate the manufacture or sale of contraceptives, but actually prohibited their use. This was unnecessarily broad and destructive, and therefore a violation of the constitution.
Douglas wrote, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
Famously, Justice Douglas wrote about “penumbras” of the rights of privacy guaranteed under the constitution. “Specific guarantees in the Bill of Rights have penumbras,” he wrote, “formed by emanations from those guarantees that give them life and substance.”
The right to freedom of speech and freedom of the press, for example, must guarantee not just the right to utter or print something, but also the right to distribute it and to read it. The “penumbra” of delivering or subscribing to a newspaper would emanate from the right to freedom of the press that protects the writing and printing of the newspaper, or else printing it would be meaningless.
In short, the holding suggested that the state had no place in the bedrooms of married persons. A constitutional guarantee of privacy overrode any arguable State interest.
Griswold paved the way for the 1971 case of Eisenstadt v. Baird, which extended the privacy protection around contraception to unmarried people. Ultimately, the two extended to Roe v. Wade. In a somewhat straight line, what the court has held — and what has been the law of the land for more than 50 years — is that the constitutional right to privacy generally overrides any interest the government may have in nosing under the tent of intimate personal decisions.
As in Roe, eight years later, the Griswold decision came down 7-2 in favor of the majority.
A short word about precedent is order here.
“Precedent,” or the fancier stare decisis (literally, “to stand by things decided”), is the legal precept that when an issue has been previously brought to the court and ruled upon, that determination should be preserved. Unless there is some new substantive wrinkle that makes the current matter somehow consequentially different — and thereby “distinguishable” — the court should stick with what it’s done before. So doing promotes evenhandedness, predictability, consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.
Griswold to Eisenstadt to Roe should generally predict what path the new Alabama and Missouri laws should follow. But precisely what this court will do will have to wait as, Dandy Don Meredith was fond of saying, “until the fat lady sings.”
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.
