Griswold v. Connecticut, 381 U.S. 479 (1965)

The Planned Parenthood League of Connecticut and Yale University medical and law faculty made three attempts to persuade the Supreme Court to negate the 1879 Connecticut statute that criminalized the giving of advice about and the use of contraceptives to prevent conception. After the state legislature in successive sessions failed to change the policy supported by the Catholic hierarchy, clinics that served patients unable to afford private medical services turned to the third branch. In 1943 (Tileston v Ullman, 318 U. S. 44, 1943), the Court dismissed the action on the ground that the doctor petitioner had no standing to litigate a patient’s right to medical advice. In 1961 (Poe v Ullman, 367 U.S. 497, 1961), the Court refused to face the substantive issue for lack of prosecution of violators. Chief Justice Earl Warren agreed to reject the case for a political reason: the race equality decisions of the 1950s had aroused opposition and anger toward the Court that would be intensified if the Court mandated a new liberal national policy toward sex and procreation. The litigants provided a real controversy in 1965 by arranging for the arrest of the executive and medical directors of the Planned Parenthood clinic as they were giving advice on contraception to married couples. Upon appeal of their conviction and sentence, the Court decided (contrary to Tileston) that the professional relationship gave the petitioners standing to litigate their patients’ constitutional rights. All nine justices recognized that the Connecticut policy was irrational, but two voted in dissent to leave the policy in state hands. On the question of constitutionality, seven justices concluded that the state law infringed on the marital right of privacy. The minimal five signed the Court opinion of Justice Douglas. Only Justice Clark did not separate himself from Justice Douglas’s reasoning. Diverse Reasoning Griswold was a case of first impression, although Justice Douglas found support in two 1920s cases that protected family preferences for private schooling and for foreign language training for their children (Meyer v. Nebraska, 262 U.S. 390, 1923; Pierce v. Society of Sisters, 268 U.S. 510, 1925). These cases were not entirely apposite since they were decided when substantive due process was a legitimate doctrine and involved family choices for an activity (schooling) that would be performed in a public space. Griswold concerned sexual acts using contraceptives that would be performed in a private space. The justice emphasized this distinction with his poetic invocations of the sacredness of marriage and his apprehension of police searching marital bedrooms.

The focus on procreation brought Griswold closer to Skinner v. Oklahoma, where punishment for repeat offenders of certain offenses included sterilization. In 1942, writing for the Skinner Court, Justice Douglas had characterized the right to have offspring as a basic right, but then sidestepped the issue by using the equal protection clause to negate the penalty. Although equal protection, ‘‘the last resort of constitutional arguments,’’ was also available in the Griswold case facts, the Court faced the substantive issue directly.

The justices provided four different constitutional foundations for the new right to privacy. Justice Douglas tried to avoid the revival of substantive due process by basing his argument on penumbras and emanations from specific guarantees in the Bill of Rights, as applied to the states through the Fourteenth Amendment. He recognized a zone of privacy emanating from the First, Third, Fourth, Fifth, and Ninth Amendments. The justice also reached outside the Constitution to older rights that he assumed existed in the consciousness of the founders. Justice Goldberg wrote a concurring opinion signed by Justices Warren and Brennan to emphasize that the Constitution protected fundamental personal rights not listed in the Bill of Rights. He relied on the Ninth Amendment as indicator of the existence of other rights rooted in American traditions and institutions.

Two justices, John Harlan II and Byron White, agreed with the majority’s disposition but rejected Douglas’s reasoning and openly revived substantive due process. Justice Harlan used his concurrence in the judgment to continue an old battle with Justice Black over the incorporation doctrine. He argued that incorporation would not guarantee judicial restraint and substantive due process would not unleash judicial power, if the justices respected national history, basic values, and structural doctrines. Although categorized as conservative, Justice Harlan perceived a living and changing Constitution.

Justice White differentiated economic rights from the family rights created in the Meyer and Pierce precedents. His focus here and in Eisenstadt v. Baird, 405 U.S. 438 (1972), on conventional sexual relationships and procreation allowed him in Roe v. Wade, 410 U.S. 113 (1973), to dissent in opposition to abortion and in Bowers v. Hardwick, 478 U.S. 186 (1986), to write for the Court in refusing to decriminalize sodomy. He did not question the legitimacy of Connecticut’s stated purpose of preventing illicit sexual relationships, but pointed out the absence of any rational connection between the purpose and the method. He also emphasized an inequality aspect of the factual situation ignored by other justices: that the statute did not affect persons with knowledge and resources.

Like Justices Harlan and White, Justice Black recognized that the only appropriate constitutional basis for this decision was due process. But he reasoned from the plain words of the Constitution and, like Justice Douglas, maintained an adamant New Deal stand against substantive due process in refusing to distinguish moral from economic regulations. The justice had expressed his fears in 1947 when he predicted that the Court would ‘‘roam at large in the broad expanse of policy and morals . . .’’ (Adamson v. California, 332 U.S. 46, 1947, at 90). Justice Stewart in a separate dissent criticized the Connecticut statute as poor social policy but could find no privacy right in the Constitution or in the Court’s precedents. He particularly derided Justice Goldberg’s attempt to introduce the Ninth Amendment into constitutional jurisprudence. His solution to bad law was representative government.

Constitutional meaning is not settled by the flawed reasoning of a single case but emerges from successive cases that address the same conceptual and constitutional problems. The constraints of precedent and history and the Court’s need to satisfy at least five members often result in opinions with imaginary facts, strained judicial reasoning, and faulty doctrines. The justices hold an institutional memory of political problems exacerbated by past precedents and follow old thinking even after the context has changed.

Although the relationship at the Connecticut clinic involved an outsider to the marital couple—the doctor— and the locus was a quasipublic health clinic, the opinions described a fictional situation of sex in the marital bedroom. To meet the expectation of clarity in their opinions, the Court prefers to reduce the number of issues in a case, so it ignored the issues of the doctor’s professional integrity and the patient’s autonomy in order to focus on the marital couple’s privacy. The Griswold opinions adopted the concept of privacy because precedents and legal literature on privacy, but not on autonomy, were available to support their disposition. The Court ignored the fact that the two extant meanings of privacy rights applied to criminal procedure and torts and not to substantive crimes.

Development of Precedent

Griswold was innovative in its use of privacy doctrine to void a Criminal Law passed under state police power. Its significance lies in its creation of a public policy supportive of personal sexual autonomy that fit the country’s changing national culture. After 1965, the Court expanded its new doctrine to invalidate Criminal Laws that denied personal choice of abortion and sodomy. The unintended consequence of Griswold was to place the Court at the center of national electoral and legislative politics over controversial social issues into the twenty-first century.

Justices are aware of the potential use of their precedents but cannot control their future application. In Poe Justice Harlan had written that ‘‘I would not suggest that adultery, homosexuality, fornication, and incest are immune from criminal enquiry, however privately practiced’’ (@552). In his concurring Griswold opinion Justice Goldberg warned of the doctrine’s impact on homosexuality and other sexual offenses. Justice White had tried to head off expansion through his emphasis on family values. Nevertheless, the Court in the 1970s extended the right to buy and use contraceptives from the married couple to adult and minor individuals (Eisenstadt v. Baird; Carey v. Population Services International). The most important direct legacy of Griswold was the 1973 (limited) right to abortion. In Roe the Court abandoned Justice Douglas’s penumbras and relied openly on the liberty protected by the Due Process Clause to support a woman’s right to choose an abortion.

The Court temporarily halted its expansion of the Griswold doctrine in 1986 in denying the privacy rights of practicing homosexuals (Bowers v. Hardwick). Then, in 2003, the Court overruled Bowers (Lawrence v. Texas, No. 02-102, 2003). Justice Kennedy tied the new decision to Griswold through a factual similarity—the legislative proscription of nonprocreative sex—and through the reasonableness of applying the same doctrine that protects conventional sexual bonding to a different choreography. In Lawrence the Court provided the clarity that was lacking in the reasoning and doctrinal basis of Griswold, revealing again that constitutional meaning is always a work in progress.

The series of cases following Griswold are not the last word on the constitutionality of legislative policy on sex and procreation. Justice White’s separate opinion in Griswold focused attention on the purpose of the state in regulating sexual conduct. If the state connected a well-grounded security purpose to its control of reproductive sex (to increase or decrease population), it is possible that a future Court would find a Compelling State Interest and rework its doctrines on the autonomy of sexual behavior once more.

BEVERLY BLAIR COOK

References and Further Reading

• Baer, Judith A. Women in American Law, 2nd ed. New York: Holmes & Meier, 1996, pp. 195–199.
• Beaney, William M., The Constitutional Right to Privacy in the Supreme Court, The Supreme Court Review (1962): 212–251.
• Copelon, Rhonda. ‘‘Beyond the Liberal Idea of Privacy: Toward a Positive Right of Autonomy.’’ In Judging the Constitution: Critical Essays on Judicial Lawmaking, Michael W. McCann and Gerald L. Houseman, eds. Glenview, Ill.: Scott, Foresman and Company, 1989, pp. 87–314.
• Ernst, Morris L., and Alan U. Schwartz. Privacy: The Right to Be Let Alone. New York: The Macmillan Company, 1962.
• Henken, Louis, Privacy and Autonomy, Columbia Law Review 74 (1974): 1410–1433.
• Kauper, Paul G., Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case, Michigan Law Review 64 (1965) 235–258.
• Posner, Richard A., The Uncertain Protection of Privacy by the Supreme Court, The Supreme Court Review (1977): 173–216.

Cases and Statutes Cited

• Adamson v. California, 332 U.S. 46 (1947)
• Bowers v. Hardwick, 478 U.S. 186 (1986)
• Eisenstadt v. Baird, 405 U.S. 438 (1972)
• Lawrence v. Texas, No. 02-102 (2003)
• Meyer v. Nebraska, 262 U.S. 390 (1923)
• Olmstead v. U.S., 277 U.S. 438 (1928)
• Pierce v. Society of Sisters, 268 U.S. 510 (1925)
• Planned Parenthood v. Casey, 505 U.S. 833 (1992)
• Poe v. Ullman, 367 U.S. 497 (1961)
• Roe v. Wade, 410 U.S. 113 (1973)
• Tileston v. Ullman, 318 U.S. 44 (1943)