In the 1960s, this brilliant legal strategy made the Pill legal everywhere
How the right to privacy translated into the right to contraception
In the public debate, Roe v. Wade is shorthand for abortion rights. But there’s another court case that you need to know about in order to understand the history of reproductive rights: Griswold v. Connecticut. It doesn’t exactly roll off the tongue, but it paved the way for Roe and dozens of other crucial Supreme Court decisions since.
Griswold was tried in 1965. At the time two states, Connecticut and Massachusetts, still had laws on the books making it illegal to administer “any drug, medicinal article, or instrument for the purpose of preventing conception.”
But Estelle Griswold and Dr. Charles Lee Buxton started a birth control clinic in New Haven, anyway. They were both arrested, tried, found guilty, and fined.
Griswold and Buxton were no pushovers. She was the head of Planned Parenthood in Connecticut, while he was a Yale Medical School professor. Both were fierce advocates for reproductive rights — and, in fact, they had already been before the Supreme Court arguing against the constitutionality of the Connecticut law. While the law was never enforced, it had scared the state’s clinicians away from helping women obtain contraceptives, limiting statewide access to reproductive aids and even information.
The court rejected their first challenge to the Connecticut law in Poe v. Ullman, in part because the law had never been enforced. So Griswold and Buxton opened the New Haven clinic months later, knowing they would be arrested, and that the arrest would lead to a new case against the state of Connecticut. The state took the bait.
In Griswold, their lawyers argued an interesting case. Since the clinic had deliberately and strategically only given contraceptives to married women in the few days it was open, they accused the state of violating the marital privacy of those clients. At the time homosexuality was generally criminalized and divorce was still widely frowned upon, but it was hard to argue that married heterosexual couples didn’t have some rights to make personal choices without the interference of the state.
The matter at stake, then, was the right to privacy — but the Constitution doesn’t say anything about privacy. The court was faced with some tricky questions: If the Bill of Rights doesn’t explicitly give us the right to privacy, do we not have that right? Or is it in fact a fundamental right, hinted at throughout the text of the Constitution?
In its majority opinion, the court ruled that the Constitution has “penumbras” — as in shadows. There are rights that are implied by the explicit guarantees in the Constitution, the court explained, and “various guarantees create zones of privacy,” particularly the First Amendment, the Fifth Amendment and the Ninth Amendment. The right to privacy “emanated” from these amendments, the court concluded, even if the word itself is not on the page.
The cunning marital framing was enormously important to the success of her case. “Although the Constitution does not speak in so many words of the right of privacy in marriage,” wrote Justice Arthur Goldberg, “I cannot believe that it offers these fundamental rights no protection.”
“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” asked Justice William O. Douglas. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
Even Justice Byron White, who seemed to have no qualms with the idea of depriving unmarried people of contraceptives, thought the intrusion into the marriage relationship implied by the Connecticut law was a bridge too far. “I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State’s ban on illicit sexual relationships,” he wrote. It therefore “invades a protected area of privacy and association” and “demeans the marriage relationship” with no added benefit of preventing unmarried people from getting it on.
The right to privacy decided by the Supreme Court in Griswold v. Connecticut was indispensable to Roe v. Wade. In fact, in ruling on Roe, the court relied heavily on Arthur Goldberg’s Griswold decision — which claimed the penumbra of privacy was found in the Ninth Amendment. In total, the Supreme Court mentioned Griswold no fewer than 10 times when ruling in favor of abortion rights.
Griswold was the bedrock case for the pro-choice victories to come. But its implications were even broader. As recently as 2003, it was invoked in order to strike down Texas’s sodomy ban in Lawrence v. Texas.
Justice Anthony Kennedy’s majority opinion in Lawrence v. Texas took an almost exasperated tone with the bigoted and outdated Texas statute. But before enumerating the violations of liberty instantiated by the anti-sodomy law, he wrote, “the most pertinent beginning point is our decision in Griswold v. Connecticut.”
