Constitution Daily

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Recalling the Supreme Court’s historic statement on contraception and privacy

June 7, 2019 by Nicandro Iannacci


It was on this day in 1965 that the Supreme Court ruled in a landmark case about contraception use by married couples that laid the groundwork for a constitutional “right to privacy” in the United States.

Writing for a 7-2 majority in Griswold v. Connecticut, Justice William O. Douglas famously said that a general right to privacy is found in the “penumbras,” or zones, created by the specific guarantees of several amendments in the Bill of Rights, including the First, Third, Fourth, and Ninth Amendments.

It was nearly a century prior to the decision, however, that its wheels were set in motion.

In 1879, Connecticut passed a law that criminalized the use of contraception: “Any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days.”

The law went on: “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.”

Prior to Griswold, challenges were made to the Connecticut law but were never heard on the merits of their claims. In Tileston v. Ullman (1943), the Supreme Court dismissed a challenge from a doctor based on a lack of standing, as he had not demonstrated a threat to his personal life or liberty. Similarly, in Poe v. Ullman (1961), the Court dismissed a challenge from a woman based on a lack of standing, as the woman had not actually been prosecuted under the law.

But in 1961, opportunity emerged to challenge the law. Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, medical director for the League, opened a new health clinic in New Haven. They were soon arrested and convicted for providing information and advice to married couples seeking contraception. They were also fined $100 each.

Griswold and Buxton appealed their case immediately, but their conviction was upheld by the Appellate Division of the Circuit Court and by the Connecticut Supreme Court.

With nowhere left to turn, the pair appealed to the U.S. Supreme Court. They argued that the Connecticut law violated their due process rights under the 14th Amendment.

The Court ultimately agreed—and went even further. A “right to marital privacy” was an integral part of a more general right to privacy built upon several other rights explicitly defined, and it had been violated in this case by the state’s contraception law.

“The First Amendment has a penumbra where privacy is protected from governmental intrusion,” the Court said. “While it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.”

The Court also pointed to the Third Amendment (prohibition against the quartering of soldiers), the Fourth Amendment (protection against “unreasonable searches and seizures”) and the Fifth Amendment (prohibition against self-incrimination) as further examples of privacy guarantees.

Undergirding the majority’s analysis was the Ninth Amendment, which says that the rights of the people are not limited to those enumerated in the Constitution. The 14th Amendment allowed the Court to bring these protections to bear against state law.

In his concurrence, Justice Arthur Goldberg argued that the Ninth Amendment alone allowed the Court to find a “fundamental” right to marital privacy without needing the support of others. In separate concurrences, Justice John Marshall Harlan and Justice Byron White called the Connecticut law simply a violation of “liberty” under the due process protections of the Fourteenth Amendment.

Griswold and the general right to privacy have since been cited in many important rulings, including Eisenstadt v. Baird (1972; right of unmarried couples to use contraception), Roe v. Wade (1973;  right of women to an abortion) and Planned Parenthood v. Casey (1992;  upholding abortion rights).

Nicandro Iannacci is a former web strategist at the National Constitution Center.


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