Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy by John W. Johnson (Paperback 280 Pages)
Jane Against the World by Karen Blumenthal is one of many books discussing the long history of the abortion conflict. An important moment in this history was the decision of Griswold v. Connecticut (1965). This Supreme Court case firmly recognized a constitutional right of privacy and applied it to the right to use birth control. This led to many more constitutional battles.
The right to privacy concerns both the ability to make certain personal decisions and having a private zone to make them. The right to privacy became a major battleground in judicial nominations and political campaigns. Liberals and conservatives, in their own ways, argued certain things were private and the government should not be involved.
Griswold v. Connecticut discusses the long battle over birth control in Connecticut and the country as a whole. This involved many legal battles summarized here. The book also provides a summary of the development of an understanding of the right to privacy, which involved many aspects such as privacy over religious beliefs. It puts this one case in a wider context.
The book ultimately provides a full discussion of the case itself, including the arguments of each side, and how each Supreme Court justice understood them. It then provides an after-judgment report, including reactions to the ruling and a summary of further privacy-related cases until the early 21st Century. This includes battles over same-sex marriage.
The right to privacy continues to be front and center in today’s world. Many fear Griswold itself will be next on the Supreme Court’s “chopping block.” This book is therefore quite relevant as the debates raised over fifty years ago continue in force today.
The quote starts with a pun, suggesting the author has a light touch. It also shows the breadth of the issue of privacy. The book helpfully provides a complete account there as well. The right to privacy often is deemed a code for “abortion.” It is a lot more.
Should I Read It?
There is a category of books that are legal case studies. These books discuss a major Supreme Court case such as Brown v. Board of Education, which dealt with segregated schools.
The best of these books and I think this one is above average, do a range of things. They do these things in a clear way, understandable even if you do not know much of the law or history involved. They cover the important points, in an accurate fashion.
And, overall, the author does not root for one side. Sometimes, this last aspect is not present but applies here. The author also often mixes in a bit of humor or at least a bit of wry on toast.
First, they fully discuss the case involved. The reader takes a step-by-step journey from the events that started it all, all the way up to and after the decision of the Supreme Court. The reader learns the many details involved as well as gets a look at the Supreme Court itself.
Second, the book steps back and examines the wider history of things. It is helpful to do this in the context of a specific case. For instance, the life of a student can be used to discuss wider issues. Griswold was not just about one birth control clinic. It was part of a wider story.
Finally, the best books provide the various complexities involved. This book does not tell us as much about the state side of the case as I would like, including what happened to the person who argued the law should stand. But, the book does discuss supporters of anti-birth control laws as well as critics of the Supreme Court decision. The book is not a one-sided affair.
These are reasons to read this book. The book is not a totally comprehensive account. These books are not intended to be. Those who wish for a more detailed account can look elsewhere, including the Liberty and Sexuality while others can prefer more simple young adult level volumes. This book is appropriate for the standard middle-of-the-road reader.
And, with the “right to privacy” and including battles over contraceptives ever so topical, this is a good place to start. I do wish it had some pictures. The book is easy to read, and divided into reasonable topical segments, even without pictures.
This book also fits well with some others reviewed for this website. Consider these books:
- Quarantine Life from Cholera to COVID-19
- Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck
- In Reckless Hands
- Jane Against the World: Roe v. Wade and the Fight for Reproductive Rights
The Landmark Law Cases series of books covers a range of Supreme Court cases in a range of areas. This chapter briefly introduces this one.
Privacy, a type of freedom of intrusion, by the state is not explicitly referenced in the U.S. Constitution. Is it because those who wrote the Constitution thought it too obvious? Was it an oversight? Was it not really covered?
No matter what the answer might be, privacy would over time become an important concern in American life, covering a range of issues. Birth control would be but one of many.
The book will help answer the “origins, definition, and elaboration” of the constitutional right of privacy as well as the battle over the right to birth control in Connecticut.
1 The Connecticut Exception to Birth Control in America
In the 1870s, a Civil War veteran, Anthony Comstock, became an anti-vice activist.
His efforts led to a stronger federal ban against sending “obscene” materials (including contraceptives and birth control information) through the mail. A law against birth control, including its use, is passed in Connecticut. The use law in Connecticut is particularly strong though birth control is suppressed in a variety of ways throughout the country.
Margaret Sanger (born 1879) became a birth control activist. The birth control movement had a major victory when a federal appeals court held the federal law against birth control does not apply to medical use. Efforts to overturn the Connecticut law failed and continued to do so year after year into the 1960s. An attempt is made to open a birth control clinic there in the 1930s.
2 Judicial Challenges to the Connecticut Ban on Contraception
An important state court decision in Massachusetts, which has a strong anti-birth control law, provides a medical exception. The Connecticut courts do not. When people involved in the opening of the birth control clinic are charged, the courts determine there are no exceptions.
One challenge ultimately is taken to the U.S. Supreme Court. Tileston v. Ullman (1943) decides that the doctor incorrectly claimed a threat to “life” though he personally had no risk in that respect. The lawsuit was poorly drawn, not bringing in the interests of his patients.
The net result was that no birth control clinic opened in Connecticut. The law was otherwise rarely enforced (such as a few times when condoms were sold). But, the lack of clinics meant that many people who needed them (particularly poorer women without private doctors) lost out.
3 More Judicial False Starts
The Planned Parenthood League of Connecticut (PPLC) hired Estelle Griswold as its executive director in 1953. She had a career as a singer, and volunteered for a variety of human rights causes, but was not a lawyer or physician. Griswold was a good administrator and fundraiser.
Dr. C. Lee Buxton was a director of a fertility clinic, partially funded by the PPLC. Fowler Harper had various federal jobs and was a professor of law. He would be the lead advocate in the next stage of birth control litigation until his death in the middle of the Griswold case. Catherine Rorabeck, a younger lawyer (Yale 1948), also played an important part in the litigation.
A set of cases, making various constitutional claims, were put in place in the mid-1950s. They particularly were anonymously (such as “Poe”) in the names of various women with health conditions that made becoming pregnant dangerous.
The state court continued to reject such claims, holding that the ban furthered public morality (including the prevention of adultery). Abstinence was cited as an alternative. Thus, the courts ruled that the lack of birth control did not illegitimately burden marriage life.
Abraham Ullman defended the law for the state. The Supreme Court in Poe v. Ullman (1961) held that the lack of enforcement meant there was not really a risk of harm.
Two justices strongly dissented while others showed some interest in hearing the merits. If someone was actually arrested, maybe?
4 “To Be Let Alone”: The Emerging Right of Privacy
Early American life was not very privacy-friendly, including early homes not having corridors to help protect individual bedchambers. Privacy concerns developed slowly over time.
Privacy related concerns did influence various provisions of the Bill of Rights, particularly the Third (against quartering troops) and Fourth (unreasonable searches and seizures) Amendments. The right of criminal defendants not to testify is also a form of privacy.
The First Amendment also implies certain privacy of beliefs, including the right to write anonymously (such as the Federalist Papers, written by ”Publius,” who really was John Jay, Alexander Hamilton, and James Madison). Also, the privacy of letters in the mail was eventually protected by federal law.
Privacy was also protected in the law in other ways, including certain relationships such as lawyers/clients, physician/patient, and married couples. A general “right to privacy” began to be recognized in the late 19th Century, including as a “right to be left alone.” Louis Brandeis, who later because Justice Brandeis (see his dissent in Olmstead v. U.S.), played a big role.
By the 1950s, privacy was also found in various ways in constitutional decisions. Supreme Court rulings spoke of the right to marry and to raise children. Fourth Amendment cases recognized some right to privacy. And, there was a sort of “political privacy” over beliefs, including against legislative investigations deemed too intrusive regarding private matters.
Meanwhile, however, liberal justices were concerned about open-ended judicial power to strike down legislation because it was earlier used against economic regulations like minimum wage laws. Justice Hugo Black, a civil libertarian in various ways, was a strong voice here.
5 Back in Connecticut
Planned Parenthood opened a new birth control clinic, only for married couples, but made sure this time someone was arrested. A concerned citizen’s complaint did the trick.
Both Estelle Griswold and Dr. Buxton were arrested and convicted for aiding and abetting the use of contraceptives. They were fined $100 and the Connecticut Supreme Court again rejected a constitutional challenge. The true goal was to win in the United States Supreme Court.
6 Attracting the Attention of the Supreme Court
Fowler Harper, who was now in failing health, carefully drew up an appellate brief to argue that the Supreme Court should take the case. He was successful but died soon afterward. Fowler talked his friend and colleague, Thomas Emerson, to take over.
An important argument made rested on the fact that Griswold and Buxton were convicted of aiding and abetting the use of contraceptives. Women patients could argue that the law violated their privacy. Now, Griswold and Buxton could defend the privacy of their patients since if their patients are protected, the law against helping them is also illegitimate.
[This benefits people that usually have more ability to sue and wait while litigation takes place than individual patients, who in part do not want to publicly make their actions known. It also helps promote litigation that in the long run helps many more people not directly in the lawsuit.]
The state argued that the two had no right to sue on that ground, only the patients would. Connecticut also rejected a free speech argument (the law in part banned “counseling”) since actual birth control items were handed out. This is not “speech” but “action.” It also argued past cases should be followed upholding state power to ban contraceptives.
The right to privacy was only a limited portion of the challengers’ brief. The major argument was that birth control involved individual liberty (not merely an economic regulation), so the ban required a stronger justification than provided. One friend of the court brief reminded the Supreme Court of liberal Catholics with more modern views about birth control.
7 The Supreme Court Hears the Birth Control Case
This chapter discussed the individual nine justices, led by Chief Justice Earl Warren, whose law clerk was wary about some open-ended right to privacy argument. We are also told about the oral argument, where each side discusses the case and is asked questions by the justices.
You can listen to the oral argument online. Notice that each side had double the length of time (one hour) than is usually given today. Also, until recently, the transcripts did not label the person asking a question. The labels on the Oyez.com website are unofficial.
8 Confidential Discussion and Public Decision
After the oral argument, the case was discussed at “the conference,” where various matters, including decisions regarding how each justice will vote to decide cases.
The justices split 7-2 (Black and Stewart dissenting) but had different reasoning. Only one justice used Emerson’s main argument. Another argued the Due Process Clause protected privacy, which over time, was the one the Supreme Court itself relied upon.
Five justices joined the main opinion, and three of them also joined an opinion based on the Ninth Amendment. This opinion, which Stephen Breyer (then a law clerk, later a justice) helped to write, discussed the history of the Ninth Amendment and how it helped show how a right not expressly listed in the Constitution (privacy) was correctly protected by the Supreme Court.
The main opinion, which is very short, and written by Justice William O. Douglas argued that various amendments only are truly protected if a right to privacy is protected. He used funny-sounding words at times (“penumbra”) to do this. The dissent was not convinced, arguing he was illegitimately overruling the people’s will without constitutional backing.
The book does not spend much time breaking down individual opinions. Those who wish for more analysis can look elsewhere. Also, the opinions are reasonably readable for laypersons. If you read them online, you can click the links to check out previous cases cited by the justices.
9 Reactions and Repercussions
Estelle Griswold retired and moved to Florida. Dr. Buxton died a few years after the ruling. Emerson and Roraback continued their professions. It isn’t clear from the book what happened to the young state attorney that unsuccessfully defended the law.
The chapter also examines media coverage and law academic reactions. As a whole, the reactions were positive. A few voices were wary about the limits of the majority opinion, offering criticisms of its reasoning. Some states reformed their birth control laws.
One thing often not covered in the discussions (and barely touched upon during oral arguments) is how the case would apply to abortion. Dr. Buxton was interested but did not have time to put his expertise toward abortion access before his death. Others did fight for abortion access.
10 Elaboration of the Constitutional Right of Privacy
The first major expansion of the right to privacy involved birth control. The Supreme Court in Eisenstadt v. Baird (1972) protected the right of unmarried people to use birth control, even though Griswold made special notice that “marital bedrooms” were invaded.
The big step, however, was Roe v. Wade (1973) and other cases protecting the right to choose an abortion. Other cases protected possessing obscene materials at home, the right to marry even when in arrears for child support, but not a “right to die” (euthanasia).
The right to privacy also became fodder for judicial nominees. One strong opponent of Griswold and the constitutional right to privacy (Robert Bork) was not confirmed as a justice of the Supreme Court. Nominees that would not put their beliefs about Roe on the record were willing to grant that they supported Griswold v. Connecticut.
Epilogue: Privacy and Sexuality at the Dawn of a New Century
The beginning of the 21st Century raised various areas of privacy concerns. Many of these such as the security of personal records, national security laws (USA Patriot Act), and work-related privacy matters have not led to federal constitutional protections. They have continued to be subject to controversy as well as being addressed by various state and federal laws.
Homosexual rights did begin to be protected by the Supreme Court by this time. At first, the Supreme Court narrowly rejected a right to “homosexual sodomy.” But, it overruled itself in Lawrence v. Texas. Meanwhile, with strong opposition including federal and state laws that expressly rejected the right, same-sex marriage began to be accepted.
The constitutional right to same-sex marriage was recognized by the Supreme Court (5-4) a decade after the publication of the book. Controversy continues.
This is a detailed summary of events, court cases, and otherwise, from 1873 to 2004.
Points to Ponder
This story is full of characters, so many that the book is unable to tell many of their stories. For instance, the mother of the actress Katherine Hepburn was a leading birth control advocate. I don’t know about you, but these details fascinate me still while reading them.
And, one mostly forgotten case on the road to Griswold involved a young married couple, who argued they needed birth control to have time to “adjust, mentally, spiritually and physically, to each other so as to establish a secure and permanent marriage before they become parents.”
Louise Trubek talked about it fifty years later in an op-ed. This is basically the core argument behind a right to privacy, more so than some of the women who argued special health problems required them to use birth control. A right to choose basic aspects of one’s life.
The “right to privacy” as a constitutional right also entails many complicated issues. This book helpfully covers various aspects involved, though it does not go into much detail about the Ninth Amendment. The right to use birth control might seem obvious to some. The details, however, are where the devils tend to be. And, they will pop up in many other cases as well.
Full disclosure: I strongly support a constitutional right to privacy as well as the other rights such as equal protection and freedom of belief that arise in these cases. Such a right includes the choice not to use birth control and so forth if that is the choice you make.
John W. Johnson is a professor of history at the University of Northern Iowa.
He specializes in the history of U.S. Constitutional law and has written books and articles about important court cases and trends in the U.S. Supreme Court, among other related topics.
Johnson published the comprehensive, two-volume Historic U.S. Court Cases, 1690-1990: An Encyclopedia, which contains over two hundred essays about important issues that were addressed by the U.S. Supreme Court.
He wrote books such as Insuring against Disaster: The Nuclear Industry on Trial, and The Dimensions of Non-Legal Evidence in the American Judicial Process: The Supreme Court’s Use of Extra-Legal Materials in the Twentieth Century.
He also wrote two Griswold-like books. The Struggle For Student Rights (Tinker armband case) and a book (with Robert P. Green) discussing the history of Affirmative Action.
Is Griswold v. Connecticut a Reliable Source?
The dedication of this book is “for thirty years of students.” Johnson was a long-term history professor with special expertise in constitutional law. This provided him with good skills to both understand the history involved as well as to analyze the legal issues.
The Landmark Law Cases series makes it a policy not to include endnotes, but the book has an extended bibliography showing the breadth of materials involved. Also, the respectability of the series makes the editors’ acceptance of his work a positive check on his ledger.
Griswold v. Connecticut covers the legal and historical material in a reliable way.
I would add that it should be noted for those who listen to the oral arguments of these cases at Oyez.com that the transcript at times mislabels the justices speaking.