June 7, 1965 – The U.S. Supreme Court Decides Griswold v. Connecticut

Griswold v. Connecticut (381 U.S. 479, 1965) is the landmark case in which the U.S. Supreme Court ruled that marital contraception was a private matter.

In Griswold v. Connecticut, Justice William O. Douglas, writing for the Court, famously (and somewhat opaquely) held 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” [citations omitted].

The case invalidated a Connecticut statute that prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” It further provided that “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 principle offender.” Although the law was passed in 1879, it was almost never enforced and had evaded judicial review until Griswold.

In Griswold, appellants filed suit after they were fined for giving “information, instruction, and medical advice to married persons as to the means of preventing conception” in violation of the Connecticut statute.

The Court seemed predisposed to find the statute unconstitutional, but struggled for a rationale. None of the rights specifically delineated in the Constitution had been infringed, and the Court had long ago vitiated the principle of “substantive due process” regarding economic regulation, whereby it had invalidated laws solely on their “wisdom, need, and propriety.” Nevertheless, Justice Douglas found that some rights not specifically listed in the Constitution and in the Bill of Rights were created by implication.

Justice William O. Douglas

Justice William O. Douglas

The Court contended that the express guarantees of the Bill of Rights were not meaningful unless those rights had “penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” In other words, it can be rather difficult pursuing “life, liberty and property” without a little privacy, especially when it comes to regulating ones’ own sex life and family-planning strategy.

Justice 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.

We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. 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.”

Although in Griswold, Douglas recognized a “right of privacy,” his ruling was limited to finding the right to use contraceptives or providing advise on their use. [Court opinions must perforce apply only to the case on which they are ruling.] Furthermore, his language provided very little guidance on the boundaries or extent of the penumbras.

However, his rationale could be used to expand the right indefinitely, at least to the extent that any other statute “operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.”

The vote was 7-2 in favor of penumbras.

Justice Arthur Goldberg wrote a concurring opinion in which he said that he did not accept the view that “due process” as used in the Fourteenth Amendment incorporates all of the first eight amendments; rather, he believed that the Ninth Amendment justified the Court’s ruling. (The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)

Justice John Marshall Harlan II wrote a concurring opinion in which he argued that privacy is protected by the due process clause of the Fourteenth Amendment “because the enactment violates basic values ‘implicit in the concept of ordered liberty.’” That is, Justice Harlan did not believe the protections of the Fourteenth Amendment were necessarily restricted to the first eight amendments but may go beyond them (for example, to Common Law). Justice Byron White also wrote a concurrence based on the due process clause.

Two Justices, Potter Stewart, and Hugo Black, filed dissents.

Justice Stewart wrote:

In the course of its opinion, the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law. We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the “guide” in this case. With that much, I agree. There is no claim that this law, duly enacted by the Connecticut Legislature, is unconstitutionally vague. There is no claim that the appellants were denied any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as a proper instrument for determining “the wisdom, need, and propriety” of state laws. Compare Lochner v. New York, 198 U.S. 45, with Ferguson v. Skrupa, 372 U.S. 726. As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States. The Court also quotes the Ninth Amendment, and my Brother Goldberg’s concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.”

“If,” Justice Stewart added, “the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.”

Justice Black agreed with Justice Stewart.

Since Griswold, the Supreme Court has cited the right to privacy in other rulings, most notably in Roe v. Wade, 410 U.S. 113 (1973). For the most part, the Court made these later rulings on the basis of Justice Harlan’s substantive due process rationale. [In West Coast Hotel v. Parrish (1937), the Court had rejected the idea that the Constitution protects “substantive rights,” i.e., protects certain activities from government interference that are not explicitly mentioned in the Bill of Rights. But the Griswold ruling found that “substantive rights” do exist in non-economic areas like “the right to privacy,” even if they do not in economic activities like the right to contract.] The Griswold line of cases remains controversial, and has drawn accusations of “judicial activism” by many conservatives. Griswold is considered the first modern Supreme Court substantive due process case.

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