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GRISWOLD v. CONNECTICUT (1965)

Legislative conservatism is no doubt a reflection of public opinion in most situations, but sometimes it is the result of cowardice. A singular case in point is the refusal of the general assembly in Connecticut to repeal a statute that outlawed the use of birth control devices and prohibited advising anyone to use them. The U.S. Supreme Court articulated that most famous of all unenumcrated rights alluded to in the Ninth Amendment—privacy.

Phineas T Barnum, the famous circus impresario and representative from Bridgeport to the Connecticut General Assembly, could hardly have known that his sponsorship of the Comstock Law in 1879 would, eight decades later, be at the center of a constitutional breakthrough that virtually defined the 1960s. Anthony Comstock, a neighbor of Barnum's, got the Connecticut legislature—and that of many other states—to forbid the use of any drug or article to prevent conception, and also forbid anyone to assist, abet, counsel, or hire in order to prevent conception. The law, the fruit of the Victorian mind, did not outlaw the sale of condoms or other birth control devices, and they were sold more or less openly in Connecticut drugstores. But anyone who used one faced a fifty dollar fine and a year in jail.

Meanwhile, thousands of married and unmarried women, mostly poor and ignorant of birth control methods, bore children they could not care for, patronized illegal and dangerous abortionists, and died from the effects of childbirth. Out of these conditions was born Margaret Sanger's birth control movement, the inspiration in 1923 for the formation of the Connecticut Birth Control League, which became Planned Parenthood of Connecticut.

PPC opened birth control clinics where devices and advice were dispensed around the state, and for a few years carried on their work unmolested by the long arm of the law. But in 1939, some zealous policemen raided a clinic in Waterbury, and all the clinics shut down in response.

For years, Connecticut PPC had been trying to get the birth control law amended or repealed. But Connecticut's legislature, now significantly peopled by urban Catholics, wouldn't touch it. It was time to try a different tack, and the arrest of the physicians and their aids in Waterbury opened the door to the judicial edifice. Surely the court would strike down such an archaic statute. But it didn't. On a calculated technicality the Connecticut Supreme Court dismissed the charges and prevented an appeal to the U.S. Supreme Court.

PPC executive director Estelle Griswold enlisted the aid of C. Lee Buxton, the chairman of the Department of Gynecology and Obstetrics at the Yale Medical School. Their attorneys were first, Fowler V. Harper, a professor at the Yale School of Law, and, when he died in 1963, the renowned First Amendment scholar Thomas I. Emerson, also of the Yale Law faculty. So involved wereYalies that this effort to overturn the Connecticut statute was known locally as the Yale Project.

Mrs. Griswold and Dr. Buxton were once again arrested, tried, found guilty, and appealed to the state supreme court in 1964, which predictably upheld the law—unanimously. The court held that the Comstock Law was intended to discourage adultery, premarital intercourse, and other immoral acts, and certainly the general assembly had acted within its constitutional authority to support it. But this time—on the eve of the great cultural revolution that included calls for free speech and acts of free love—the U.S. Supreme Court could no longer dodge the issue. Nor did most of its members want to.

The seven-man majority struck down Connecticut's ancient Comstock Law as an "uncommonly silly law" on June 7, 1965. Justice William Douglas reflected the liberal activism of the Court and found more or less comfortable support from Justices Warren, Goldberg, Harlan, White, Brennan, and dark. Earlier courts had articulated the right of association as a necessary implication of free speech and assembly; and in those associations the right of privacy, too, surely was implied. And too, zones of privacy grew out of the enumerated rights to speech and thought; privacy was implied in the Third Amendment's protection of the inviolability of the home, which was supported in turn by the Fourth Amendment outlawing unreasonable searches. Even Fifth Amendment protection against self-incrimination cast shadows that overlaid those of the other relevant amendments. These were the "penumbras, formed by emanations that give life and substance to ... specific guarantees in the Bill of Rights," wrote Douglas. "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." Finally, the Ninth Amendment, with its clear implication of unenumerated rights, supported the whole logical edifice.

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