SYMHC Classics: Griswold v. Connecticut

Summary

Stuff You Missed in History Class: SYMHC Classics – Griswold v. Connecticut

Released on June 7, 2025 by iHeartPodcasts

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Introduction: Commemorating a Pivotal Supreme Court Decision

In this landmark episode commemorating the 60th anniversary of the U.S. Supreme Court decision in Griswold v. Connecticut (1965), hosts Holly Fry and Tracy V. Wilson delve deep into the case that not only overturned Connecticut's stringent anti-contraception laws but also laid the foundational groundwork for the right to privacy in marital relationships. This episode gains contemporary relevance in light of recent Supreme Court rulings, such as Dobbs v. Jackson Women's Health Organization, which revisits and challenges many of the precedents set by Griswold.

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Historical Context: The Rise of Anti-Obscenity Laws

[05:32] Holly Fry introduces the episode by highlighting the impact of Griswold v. Connecticut on existing anti-contraception laws.

Tracy V. Wilson expands on the legal backdrop, explaining that Griswold not only addressed contraception but also touched upon the broader concept of due process as enshrined in the Fifth and Fourteenth Amendments:

"... this language in both of these amendments applies to persons, not just to citizens. Everyone has the right to due process, including immigrants, regardless of their immigration status." [02:30]

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Anthony Comstock and the Comstock Act: From Morality to Law

[05:32] The discussion pivots to Anthony Comstock, a fervent advocate for moral purity, whose legacy profoundly influenced the legal landscape regarding obscenity and contraception.

Holly Fry narrates Comstock's transformation from a Union soldier disapproving of vice to a leading figure in anti-obscenity campaigns:

"He started advocating for anti obscenity and anti vice laws..." [06:02]

Tracy V. Wilson details the enactment and enforcement of the Comstock Act of 1873, which targeted the distribution of "obscene" materials, including contraception:

"The Comstock act was signed into law in March of 1873... Violating this law was punishable with a fine of not less than $100 or more than $500 or hard labor of not less than one year or more than 10 years or both." [07:33]

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Early Battles for Birth Control: Pioneers and Legal Struggles

The hosts explore the relentless efforts by birth control advocates like Margaret Sanger, who faced legal challenges while striving to make contraception accessible.

Holly Fry recounts Sanger's trial in 1916 and the pivotal United States vs. One Package case in 1936:

"This case was filed against the package itself. This is a weirder thing that happens in the law sometimes where you file suit against an inanimate object." [10:41]

These legal battles gradually eroded the stringent prohibitions, setting the stage for Connecticut's unique stance on contraception.

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Connecticut's Anti-Contraception Law: A Persistent Barrier

Tracy V. Wilson traces Connecticut's staunch anti-contraception laws back to 1879, highlighting key figures like Phineas Taylor Barnum and the severe penalties imposed:

"Under this law, quote, any person who uses any drug, medicinal, article or instrument for the purposes of preventing conception shall be fined... or imprisoned." [17:08]

Holly Fry discusses the societal and legal obstacles faced by advocates in Connecticut, including the raid on a Waterbury contraceptive clinic in 1938:

"In 1938, authorities raided a contraceptive clinic in Waterbury, Connecticut..." [17:56]

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The Road to Griswold v. Connecticut: Legal Precedents and Persistent Advocacy

The episode delves into the pivotal cases leading up to Griswold, including Trubek v. Ullman and Poe v. Ullman, which collectively underscored the urgent need to challenge Connecticut's restrictive laws.

Holly Fry outlines the personal stories behind these cases, emphasizing the desperate measures couples took to access contraception:

"The Supreme Court dismissed this case, finding that... there was no injury for the court to need to remedy." [24:05]

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Estelle Griswold and Charles Buxton: Catalysts for Change

[26:15] Following the Supreme Court's reluctance to address the issue without direct legal challenges, Griswold and Buxton took decisive action.

Holly Fry narrates their bold move to open a contraceptive clinic in New Haven immediately after the Court's decision:

"On June 20, 1961, just a day after the Supreme Court decision, Griswold and Buxton announced that they would be opening a contraceptive clinic in New Haven." [26:15]

Their clinic, aimed specifically at married couples, quickly faced legal repercussions, leading to their arrest and subsequent trial.

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Griswold v. Connecticut: The Supreme Court's Landmark Decision

On June 7, 1965, the Supreme Court rendered its decision in Griswold v. Connecticut, with a narrow 7-2 majority ruling that struck down Connecticut's anti-contraception laws.

Tracy V. Wilson breaks down the Court's deliberations and opinions:

"...the Connecticut statute forbidding use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights." [32:53]

The majority opinion, authored by Justice William O. Douglas, invoked the concept of "penumbras" — zones of privacy implied by various constitutional provisions.

Holly Fry further explains the rationale behind the majority:

"The majority opinion referenced a series of previous cases in which protected rights were interpreted as being broader than what was spelled out in the constitution." [34:39]

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Dissents and Divergent Views

Despite the majority's stance, Justices Hugo Black and Potter Stewart dissented, expressing discomfort with the Court overstepping its bounds to infer unenumerated rights:

"Justice Potter Stewart wrote in his dissent, quote, I think this is an uncommonly silly law..." [38:05]

Their dissent highlighted concerns about judicial activism and the implications of inferring rights not explicitly stated in the Constitution.

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Legacy and Far-Reaching Implications

Griswold v. Connecticut has since become a cornerstone for numerous Supreme Court decisions, shaping the discourse around privacy, reproductive rights, and personal autonomy.

Tracy V. Wilson connects Griswold to subsequent landmark cases:

"In 1973, the court issued its decision in Roe vs Wade, finding the right to privacy established in Griswold as being inherent in the Due Process clause of the 14th amendment and also extending to a person's decision to terminate a pregnancy." [42:34]

Holly Fry emphasizes the enduring influence of Griswold on cases like Obergefell v. Hodges and its mention in the recent Dobbs v. Jackson Women's Health Organization:

"...in his concurring opinion, Clarence Thomas wrote that future cases should reconsider rulings that have relied on substantive due process, including Griswold, Lawrence, and Obergefell." [44:32]

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Critical Perspectives and Ongoing Debates

While Griswold is celebrated for advancing privacy rights, the episode also addresses its limitations and criticisms:

1. Narrow Focus on Marriage: The decision primarily protected married couples, leaving unmarried individuals without the same constitutional safeguards.

2. Lack of Gender Equality Emphasis: Critics, especially women's rights activists, argued that the Court should have grounded its decision in equal protection principles rather than privacy, highlighting the absence of an explicit right to bodily autonomy for women.

3. Influence of External Reports: Research suggests that international perspectives, such as the UK's Wolfenden Report, may have influenced the Court's reasoning, although Griswold didn't extend these considerations to same-sex relationships until much later.

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Conclusion: Griswold v. Connecticut – A Double-Edged Sword for Privacy and Rights

Griswold v. Connecticut remains a seminal case in American jurisprudence, establishing the judiciary's role in interpreting and protecting unenumerated rights. While it paved the way for broader privacy protections and reproductive freedoms, its narrow application and the controversies surrounding its reasoning reflect the complexities of constitutional law.

As Griswold continues to be cited in modern rulings, its legacy is a testament to the evolving nature of rights and the enduring debates over the balance between legislative authority and judicial interpretation.

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This episode was produced by iHeartRadio’s "Stuff You Missed in History Class" with hosts Holly Fry and Tracy V. Wilson. For more insightful historical discussions, subscribe to the show on Apple Podcasts, Google Podcasts, the iHeartRadio app, or your preferred podcast platform.

Transcript

[Tracy V. Wilson]

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[Holly Fry]

Hope to see you back here.

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I'm Lester Holt. It's carried forward. Tom Yamas is there for us. Firefighters are still working around the clock. As the world changes, we look for what endures. We are coming on the air with breaking news right now. We look for a constant and from one era to the next, Trust is the anchor. For NBC Nightly News, I'm Tom Yamas. A new chapter begins NBC Nightly News with Tom yamas evenings on NBC.

[Holly Fry]

Happy Saturday. This episode is coming out on the 60th anniversary of the U.S. supreme Court decision in Griswold versus Connecticut, which was decided on June 7, 1965. It overturned a Connecticut law banning contraception and established a basis for a right to privacy for married couples in the.

[Tracy V. Wilson]

U.S. this episode also makes some references to the right to due process. This is part of the Fifth and 14th Amendments to the US Constitution, which both specify that no person will be deprived of their life, liberty or property without due process of law, meaning a fair hearing or some other type of fair proceeding. So we would just like to take a moment to note that this language in both of these amendments applies to persons, not just to citizens. Everyone has the right to due process, including immigrants, regardless of their immigration status.

[Holly Fry]

This episode originally came out on July 27, 2022. Welcome to Stuff youf Missed in History Class, a production of iHeartRadio.

[Tracy V. Wilson]

Hello and welcome to the podcast. I'm Tracy V. Wilson.

[Holly Fry]

And I'm Holly Fry.

[Tracy V. Wilson]

I've been circling the idea of an episode on Griswold versus Connecticut for years. That's the U.S. supreme Court decision that overturn laws banning contraception, at least when it came to married couples. That's connected to several of our previous episodes as well. But the recent Supreme Court decision in Dobbs vs Jackson Women's Health Organization is really what finally propelled it up to the top. That's the decision that came out just recently which overturned Roe vs. Wade and Planned Parenthood vs. Casey. And in the concurring opinion that he wrote on this case, Justice Clarice Thomas wrote, quote, in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence and Obergefell. So substantive due process. That's the idea that courts can protect various rights that aren't specifically named in the Constitution. And in this case it's the right to privacy. Griswold versus Connecticut wasn't the very first Supreme Court decision ever in the US to mention the right of a concept to privacy, but it was a major decision in that regard. I personally always had a lot of trouble understanding the logic behind the decision of Roe vs. Wade. Not the outcome, but like the reasoning of how they got there, which was essentially that abortion was also protected under a right to privacy. That logic though, makes a lot more sense to me with Griswold versus Connecticut as background. And then this decision is also mentioned in a lot of other decisions that came after it, beyond just the ones that were mentioned in Thomas's concurring opinion. So that's what we're talking about today. Heads up. Obviously we're going to be talking a lot about contraception in this episode. There's also a bit about abortion and some things related to pregnancy and birth related trauma.

[Holly Fry]

Griswold versus Connecticut overturned a law that was sometimes described as a, quote, little Comstock law that was a nickname for various state anti obscenity laws that were similar to the Comstock act of 1873, or more formally known as an act for the suppression of trade in and circulation of obscene literature and articles of immoral use. This law was named for social reformer Anthony Comstock, coincidentally also of Connecticut.

[Tracy V. Wilson]

Comstock served in the Union army during the US Civil War. His upbringing had been deeply conservative, and during his time in the army, he really disapproved of a lot of his fellow soldiers behavior, especially things like gambling and drinking, using tobacco and swearing. And then for their part, his fellow soldiers seem to have seen him mostly as a sanctimonious prude. After the war was over, Comstock moved to New York, where he similarly really disapproved of the prevalence of things like sex work and explicit liter.

[Holly Fry]

So he started advocating for anti obscenity and anti vice laws. He started out doing much of this work through the Young Men's Christian association, or ymca, before heading up a new organization just for that purpose. That was the New York Society for the Suppression of Vice. These two organizations continued to be closely connected. YMCA leaders served on the Society's board.

[Tracy V. Wilson]

There were already laws on the books in various states at this point that regulated or outlawed things like sex, work or obscenity. But Comstock did not think that these laws went far enough. He advocated for a much broader federal law and he developed reports on things like sex work, drug use and sexually explicit printed materials and delivered them to members of Congress. He really argued that all of these things were corrupting children and they were encouraging crime. And he thought they should all be outlawed.

[Holly Fry]

The Comstock act was signed into law in March of 1873. It outlawed using the United States Postal Service to send any quote, obscene, lewd or lascivious book, pamphlet, picture, paper, print or other publication of an indecent character, or any article or thing designed or intended to for the prevention of conception or procuring of abortion. It applied to quote any article or thing intended or adapted for any indecent or immoral use or nature. This also included advertisements, notices and other publications. Violating this law was punishable with a fine of not less than $100 or more than $500 or hard labor of not less than one year or more than 10 years or both.

[Tracy V. Wilson]

After having successfully lobbied for this law to be passed, Comstock was made a special agent for the United States Postal Service, and he was tasked with enforcing it there. Since the act didn't actually define what obscenity was, a lot of this was up to his discretion. There was also a lot of focus on materials related to contraception. Which was specifically referenced in the law. Comstock claimed that his work in this role led to the successful prosecutions of more than 3,600 people. And he claimed that he had destroyed more than 160 tons of literature that was, at least in his opinion, obscene.

[Holly Fry]

While various states already had anti obscenity laws in place before the Comstock act was passed, some revised their laws afterward and many, many other states passed new ones. By the early 20th century, nearly every state had some kind of anti obscenity law. Ultimately, 31 states legally defined information about contraception as obscenity, and 24 states also banned the sale of contraceptives.

[Tracy V. Wilson]

So to point out one of the links back to an earlier episode of the podcast when we talked about Catherine Dexter McCormick, who provided a big part of the funding for developing oral contraceptives, we talked about her smuggling diaphragms into the United States from Europe by sewing them into the hems and linings of her clothes because diaphragms were illegal.

[Holly Fry]

This was why contraceptive advocates and other reformers pushed for the repeal of the Comstock act and all the various state little Comstocks for decades. In 1916, birth control advocate Margaret Sanger was tried for violating New York's anti obscenity law when she tried to import contraceptive diaphragms into the United States. The New York State Court of Appeals decided that doctors were exempt from the law because they were making decisions for their patients health and well being rather than for some obscene purpose. But Sanger's conviction was upheld because she was not a doctor, so that case.

[Tracy V. Wilson]

Was specific to New York. At the federal level, a similar case started dismantling the Comstock Act's prohibitions on birth control in 1936. This case was United States versus one package of Japanese pessaries, which was heard in the United States Court of Appeals for the 2nd Circuit in New York City. This package named in the case was a box of 120 contraceptive diaphragms that physician Hannah Stone, who was working with Margaret Sanger, had tried to import from Japan. The package was used at customs because importing contraceptives was illegal under the Tariff act of 1930, which had similar provisions to the Comstock Act. Because Stone had not taken possession of the shipment, she had not technically violated the terms of the Tariff Act. So this case was filed against the package itself. Stone and her attorneys stood in for the package at trial. This is a weirder thing that happens in the law sometimes where you file suit against an inanimate object.

[Holly Fry]

The U.S. court of Appeals followed the same basic logic that the New York State Court of Appeals had in the earlier case against Margaret Sanger. The anti obscenity provisions in the Tariff act and also the Comstock act didn't apply to physicians because their work as doctors was about patient health and not obscenity. So in terms of federal law, United States versus One package essentially legalized contraception if that contraception was provided by a doctor. But this ruling didn't overturn the laws that were still on the books in various states.

[Tracy V. Wilson]

Most states eventually repealed or otherwise overturned their anti contraception laws by the time the Food and Drug Administration approved the first oral contraceptive pill in 1960. But at that point, Connecticut's law remained in place. And we'll get to that after a sponsor break if you own a home, here's an interesting fact for you Today, American homeowners are sitting on a record amount of home equity. That's the part of your home you own outright, the value you can tap to fund other life goals. In fact, the average Rocket Mortgage homeowner has about $170,000 in untapped equity available now. Rocket Mortgage can help you understand what home equity is and how to use it wisely for what matters to you. They've made it easier than ever to turn your home equity into cash with Rocket Mortgage. So now the home you worked so hard for can work hard for you in plenty of different ways. Home equity can help you fund a home renovation, pay for your kid's college tuition, or pay off and consolidate high interest debt from credit cards. To learn more, just call 804Rocket or visit Rocket.com today. Rocket Mortgage LLC licensed in 50 states nmlsconsumeraccess.org 3030 $178,000 average equity is based on internal Rocket Mortgage servicing date.

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[Tracy V. Wilson]

Connecticut's anti contraception dated back to 1879. One of its primary supporters had been the chair of the Connecticut legislature Joint Committee on Temperance. That was Phineas Taylor Barnum. Yes, that is P.T. barnum, the circus guy. Under this law, quote, any person who uses any drug, medicinal, article or instrument for the purposes of preventing conception shall be fined not less than $40 or imprisoned not less than 60 days. The law also said, quote, 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. So in other words, under this law, using contraception was illegal, and so was providing contraception or counseling people about it.

[Holly Fry]

People in Connecticut lobbied for the repeal of the law for decades. This escalated in 1923 after Katharine Haughton Hepburn and two of her friends established the Connecticut branch of the American Birth Control League. Katharine Haughton Hepburn was the mother of actor Katharine Hepburn, and the American Birth Control League later became known as Planned parenthood. But in 1938, authorities raided a contraceptive clinic in Waterbury, Connecticut, and pressed charges against its medical staff, which put an end to services at the clinic and also put a damper on the rest of the movement.

[Tracy V. Wilson]

So we should take a moment to note, the birth control movement during this era was deeply flawed. Although it was rooted in the basic idea of allowing people to choose when and whether to have children, Some of its leaders, including Margaret Sanger, were also proponents of eugenics. That's rooted in the idea that the human race can be improved through things like good breeding. So broadly speaking, positive eugenics was focused on encouraging the so called right people to have more children, while negative eugenics was focused on preventing the, quote, wrong people from reproducing. This entire idea of eugenics was simultaneously racist, ableist, and incredibly widely adopted, including in some cases by leaders of various groups of people that the eugenics movement as a whole saw as inferior. Negative eugenics in particular led to horrific human rights abuses and was a major influence on Nazi racial policy.

[Holly Fry]

But what we're really focused on in this episode today is access to contraception. Eventually, Connecticut mostly stopped enforcing its anti contraception law, but since it was still on the books, this led to disparities in who could get contraceptives. Condoms were available at some drugstores, but they weren't an option for everyone, especially for people whose partners partners refused to wear condoms, or for people who needed a more discreet way to prevent pregnancy without their partner being involved.

[Tracy V. Wilson]

Middle and upper class people, especially married couples who had money and access to private medical care, could usually find a doctor who was willing to provide them with contraception in spite of the law, or if not that, at least to connect them with another provider in a state where it was legal. But poor people who didn't have these kinds of resources often could not. And people of color who were working within their own communities as doctors were generally at a lot more risk than white doctors were, compounding that if they were arrested and lost their medical license, that could mean the loss of medical care for that whole community. That was something people had to take into account when deciding whether to try to get around the law.

[Holly Fry]

In 1940, the Connecticut Supreme Court heard State vs. Nelson involving a case against two doctors who had been running a birth control clinic, one that authorities seem to have ignored until clergy in the predominantly Catholic neighborhood where it was located demanded it be investigated. The doctor's attorneys argued that the anti contraception law shouldn't apply to them because they were prescribing contraception to married women for the sake of their health and well being. The court found that the law was unambiguous. Contraception was illegal no matter who was prescribing it, and upheld it. After this, the state prosecutor agreed to drop charges against the doctors if they closed their clinic, which they did. And that led the other clinics in the state to also shut down.

[Tracy V. Wilson]

Yeah, there had been. I mean, this whole time there had been people who were trying to provide birth control. And it was like the threat that since the state had upheld the law that other clinics were also going to be targeted just led a lot of people to make the decision to shut down. So three years later, Yale Medical School professor Wilder Tyon filed suit on behalf of patients arguing that the Connecticut law needed to have an exception for people whose lives would be at risk if they became pregnant. This led to the Connecticut Supreme Court case of Tyon vs. Ullman. Ullman was the Connecticut State's attorney, Abraham Ullman. The Connecticut Supreme Court rejected Tyleston's argument, noting that people already had a way to prevent pregnancy that was, quote, positive and certain in results. That method was abstinence. The U.S. supreme Court heard oral arguments in this case, but eventually dismissed it. Quote, we are of the opinion that the proceedings in the state courts present no constitutional question which appellant has standing to assert.

[Holly Fry]

On June 23, 1960, the FDA approved the first oral contraceptive. There's more about this in our Nelson Pill hearings episode from May of 2021. By this point, public opinion polls suggested that more than 70% of people in the United States thought information about contraception should be legal. The introduction of oral contraceptives, which were in many ways more reliable and more convenient than other available methods of contraception, also added a renewed urgency to the effort to get Connecticut's law repealed.

[Tracy V. Wilson]

In 1961, the U.S. supreme Court heard two cases related to Connecticut's anti contraception law. One was Trubeck versus Ullman. Again, that's the same Abraham Ullman as before. Louise and Dave Trubeck had gotten married in 1958 while they were both students at Yale Law School. They wanted to have children one day. They did not want to have children where they were both in law school, but it was illegal for their doctor to discuss contraception with them. The Trubax case had originally been part of a group of other cases, but they elected not to remain anonymous, and their case was heard separately.

[Holly Fry]

The other case was Poe versus Ullman, and it involved an anonymous couple and an anonymous married woman. The couple were known as Pauline and Paul Poe. They had had three children, all of whom had multiple congenital illnesses and had died as newborns. They thought it was unlikely that they could have a child that would survive infancy, and they wanted to avoid future pregnancies. The married woman was known as Jane Doe. She had had a stroke while pregnant and her child had been stillborn. She was disabled following the stroke, and it was unlikely that she could survive another pregnancy. These people all lived in Connecticut, where it was illegal for their doctors to discuss contraception with them.

[Tracy V. Wilson]

In a 5 to 4 ruling, the Supreme Court dismissed this case, finding that, quote, the records in these cases do not present controversies justifying the adjudication of a constitutional issue. Justice Felix Frankfurter authored the opinion which said in part, quote, this court cannot be umpire to debates concerning harmless, empty shadows. In other words, because Connecticut wasn't really enforcing this law very strictly anymore, it was harmless and empty in the eyes of the court. Court also because none of these plaintiffs had been arrested or convicted of anything, there was no injury for the court to need to remedy. The court also dismissed Trubik vs Ullman without further comment as part of the same set of decisions.

[Holly Fry]

The dissenting justices in Poe vs. Ullman all issued their own opinions arguing, among other things, that people should not have to break the law to get basic health information and that there shouldn't need to be an arrest and conviction in order for the court to rule on whether a law was unconstitutional. The dissent by Justice William O. Douglas said in part, quote, what are these people, doctor and patients to do? Flout the law and go to prison, Violate the law surreptitiously and hope they will not get caught? By today's decision, we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment in our constitutional system. It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor. Seek a dignified, discreet, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined.

[Tracy V. Wilson]

So after this, it seemed like the Supreme Court would only be willing to examine Connecticut's law if somebody had been convicted of breaking it. So immediately after the Court announced its decision on June 19, 1961, Estelle Griswold and Charles Lee Buxton decided it was time to get arrested.

[Holly Fry]

Griswold was executive director of the Planned Parenthood League of Connecticut. Buxton was its medical director, and Jane Doe and Pauline and Paul Poe had been his patients. At this point, Planned Parenthood League of Connecticut had mostly been providing people with transportation to New York or Rhode island, where contraception was legal, rather than directly providing contraception. But on June 20, 1961, just a day after the Supreme Court decision, Griswold and Buxton announced that they would be opening a contraceptive clinic in New Haven.

[Tracy V. Wilson]

The Clinic opened on November 1st of that year, advertising its services specifically to married couples. They saw 10 patients on the first day in operation, and they also held a press conference. Two days later, police stopped by and Griswold helpfully told them all about the work they were doing, the contraceptives they were providing, the counseling that was available to patients, the literature they had available, and the fact that they knew it was all illegal.

[Holly Fry]

On June 10, police returned with warrants for Griswold and Buxton's arrest and the clinic was shut down. Griswold and Buxton stood trial, and their attorneys argued that counseling married couples on the use of contraception was protected free speech. The two were convicted and fined $100 each, and after a series of appeals, their case was before the US Supreme Court under Chief Justice Earl Warren.

[Tracy V. Wilson]

The Warren Court has come up several times on the show. Earl Warren was Chief justice when Loving vs. Virginia, Brown vs. Board of Education, and Hernandez vs. Texas were all decided. He was also Chief justice during Yates vs United States, which we talked about in our episode on cointelpro. We've also talked about his time as Governor of California on a couple of episodes, including our two parter on Executive Order 9066 and the mass incarceration of Japanese Americans during World War II.

[Holly Fry]

We will get to the Court's decision after we pause for a sponsor break.

[Tracy V. Wilson]

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[Tracy V. Wilson]

See T mobile.com On June 7, 1965, in a 7 to 2 ruling, the U.S. supreme Court issued its decision in Griswold vs Connecticut, and it overturned Connecticut's anti contraception laws. The Justices who were part of the Court authored multiple opinions in this case. Justice William O. Douglas, who had authored one of the dissents in Poe vs. Ullman, which we read earlier, authored the majority opinion. Justice Arthur Goldberg wrote a concurring opinion that was joined by Justice William J. Brennan Jr. And Chief Justice Warren. Justices John M. Harlan II and Byron White each issued their own concurring opinions, and then Justices Hugo Black and Potter Stewart dissented, as they had also done in Poe vs Allman, and each of them wrote their own dissent.

[Holly Fry]

The Court found that one, Griswold and Buxton did have standing in this matter, something that had been at issue in those earlier cases. And the Court also found that, quote, the Connecticut statute forbidding use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights.

[Tracy V. Wilson]

So the easy part with that is that the Court found Connecticut's ban on contraceptives to be unconstitutional. But the rest of it is a little trickier because a right to marital privacy isn't mentioned or enumerated in the Constitution. Like we said, up at the very top of the show substantive due process is the idea that the courts can protect unenumerated rights. And in Griswold vs Connecticut, the court was arguing that the right to privacy was found in the penumbra or the shadow of other rights that that are mentioned.

[Holly Fry]

The majority opinion referenced a series of previous cases in which protected rights were Interpreted as being broader than what was spelled out in the constitution. For example, in Meijer vs. State of Nebraska, the court had struck down a law mandating that children be taught only in English through the eighth grade. The court found that this violated the due process clause of the 14th Amendment, which says that no state shall, quote, deprive any person of life, liberty or property without due process of law. In this case, a teacher in a Lutheran school was teaching reading in German, and the court found that Even though the 14th Amendment didn't reference things like languages other than English, quote, his right thus to teach and the right of parents to engage him so to instruct their children, we think are within the liberty of the amendment.

[Tracy V. Wilson]

The majority opinion in Griswold versus Connecticut then ticked through a series of similar cases and their associated freedoms. Like in earlier cases, the court had found that the first amendment protection of free speech also included the right to read and to receive information. The court had also described the first amendment freedom to assemble as extending to the freedom of association with other people. So assembly did not just mean physically going to a meeting. It also involved being affiliated with a group and expressing personal philosophies through being a member of that group.

[Holly Fry]

Having been through all of that, the majority opinion read, quote, the foregoing cases suggest 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. The right of association contained in the penumbra of the first amendment is one. As we have seen, the third amendment in its prohibition against the quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that privacy. The fourth amendment explicitly affirms the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. The fifth amendment, in its self incrimination clause enables the citizens to create a zone of privacy which government may not force him to surrender to his detriment. The ninth amendment provides the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

[Tracy V. Wilson]

Yeah, that last one basically means just because a specific right is not mentioned in the Constitution, that doesn't mean that right doesn't exist. Like it's not saying every single right on the planet has to be specifically named or it's not a real thing. This decision went on to build the idea of a zone of privacy that was specifically related to a marital relationship. The present case then concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.

[Holly Fry]

It went on to rhetorically ask, quote, 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.

[Tracy V. Wilson]

So all those various concurring opinions agreed with the idea that the right to privacy could be inferred from some part of the constitution. They just all differed a little bit on exactly how or where. And then the two dissenting justices made it clear that they did not like this law either, even though they didn't find that there was a constitutional reason to overturn it. Justice Hugo black's dissent read in part, quote, I feel constrained to add that the law is every bit as offensive to me as it is to my brethren of the majority and my brothers Harlan, White and Goldberg, who, reciting reasons why it is offensive to them, hold it unconstitutional.

[Holly Fry]

Justice Potter Stewart wrote in his dissent, quote, I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice based upon each individual's moral, ethical and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise or even asinine. We are asked to hold that it violates the United States Constitution and that I cannot do.

[Tracy V. Wilson]

The majority, though, had found that it violated the Constitution. And by finding Connecticut's anti contraception law unconstitutional, the supreme Court made contraception and contraceptive counseling legal nationwide in the context of married couples. So this also struck down the anti contraception language in the Comstock act, which was still on the books. So this was a victory in terms of access to contraception, but it was definitely incomplete.

[Holly Fry]

Number one, it applied only to married couples. The focus was on the idea that privacy was intrinsic to a married relationship, so laws for forbidding contraceptive use or counseling for single people were unaffected. Number two, this idea that there were penumbras creating zones of privacy was immediately controversial. There were and continue to be legal scholars who argued that this isn't really a thing and that this was faulty reasoning on the part of the Justices.

[Tracy V. Wilson]

Beyond that, there were people, particularly women's rights activists, who raised concerns about this ruling's focus. There is no constitutional guarantee of equal rights for women in the United States. And at this point, the Equal Rights Amendment had not yet been passed by Congress. As we discussed in our previous episode on the Equal Rights Amendment, even though Congress did eventually pass it, not enough states ratified it by the deadline for it to become part of the Constitution. So there were a lot of women in particular who thought that the Court should have used a different reasoning, like maybe one that interpreted the 14th Amendment's equal protection and Due Process clauses as protecting a woman's right to bodily autonomy. We recognize that not everyone who can get pregnant is a woman, including trans men and non binary people, and that there were also plenty of people living at the time who were living outside the gender binary in various ways. But really the focus of the response to this in 1965 was on women.

[Holly Fry]

During research for this episode, Tracy read a paper in the American Historical Review that suggested that this privacy angle might have been influenced by the Wolfenden Report, which was published in the UK in 1957. This report followed a rise in convictions for breaking laws against homosexual behavior, including convictions of some high profile men. A committee was formed to investigate UK laws around homosexuality and sex work, and it recommended decriminalization of homosexuality. In the words of that report, there, quote, must remain a realm of private morality and immorality, which is, in brief and crude terms, not the law's business. But if this idea influenced the thought process of the Justices in Griswold versus Connecticut, it didn't make its way into Supreme Court decisions about same sex relationships until much later.

[Tracy V. Wilson]

As we said at the top of the show, the Supreme Court decision in Griswold versus Connecticut and the reasoning that was used to make that decision have become part of a lot of other cases. In 1969, the Supreme Court cited Griswold v. Connecticut in its decision in Stanley vs. Georgia, which found that possession of obscene materials was protected in part because of a right to privacy.

[Holly Fry]

In 1972, the court struck down a Massachusetts law banning the distribution of contraceptives to unmarried people. Although the question before the Court was whether this law violated the privacy standard established in Griswold vs Connecticut, the court found that it violated the 14th Amendment due process clause.

[Tracy V. Wilson]

In 1973, the court issued its decision in Roe vs Wade, finding the right to privacy established in Griswold as being inherent in the Due Process clause of the 14th amendment and also extending to a person's decision to terminate a pregnancy. But the Court also ruled that this right had to be balanced out with other concerns related to protecting a person's health and to quote, the potentiality of human life, life.

[Holly Fry]

In 1986, the Supreme Court cited Griswold vs Connecticut in its ruling in Bowers vs Hardwick, which upheld a Georgia law banning sodomy. Although attorneys had argued that sodomy was protected under the right to privacy that was established in Griswold, the Court disagreed. This ruling was overturned in 2003 in Lawrence vs Texas, which was related to both the right to privacy and to the Due Process clause of the 14th Amendment.

[Tracy V. Wilson]

In 2015, the court once again issued a ruling that was partly underpinned by Griswold versus Connecticut, and that was Obergefell versus Hodges. This decision recognized same sex marriages as legal nationwide. And it cited Griswold at several points, including the decision's description of marriage as a right that's older than the Bill of Rights.

[Holly Fry]

And most recently, the Court issued its decision in Dobbs vs Jackson Women's Health Organization overturning Roe v. Wade. This decision also overturned Planned Parenthood v. Casey, in which the Court had upheld Roe v. Wade and a constitutional right to abortion in 1992. The court's opinion, written by Justice Samuel Alito, noted that the Constitution makes no mention of abortion, something also true of the right to privacy established in Griswold vs. Connecticut. But in the court's opinion, Roe vs. Wade was different from Griswold vs. Connecticut because it did not involve, quote, the destruction of what Roe called potential life.

[Tracy V. Wilson]

So the majority opinion in this case noted the connection to several cases we just mentioned. There was Griswold, there was Eisenstadt versus Baird, which is the one that overturned the Massachusetts law barring contraception for unmarried people, and also Obergefell, calling the fear that the Dobbs decision would apply to those rulings as, quote, unfounded. But as we said at the top of the show, in his concurring opinion, Clarence Thomas wrote that future cases should reconsider rulings that have relied on substantive due process, including Griswold, Lawrence, and Obergefell. So that suggests otherwise. That is Griswold versus Connecticut. It which, as I said at the top of the show, working my way through all that, made it a lot easier for me to understand what the logic had been behind the ruling in Roe vs Wade. Thanks so much for joining us on this Saturday. Since this episode is out of the archive, if you heard an email address or a Facebook URL or something similar across over the course of the show, that could be obsolete now. Our current email address is historypodcastradio.com you can find us all over social media mistinhistory and you can subscribe to our show on Apple Podcasts, Google Podcasts, the iHeartRadio app, and wherever else you listen to podcasts. Stuff youf Missed in History Class is a production of iHeartRadio. For more podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or wherever you listen to your favorite shows.

[Tom Brokaw]

Horsepower 0 to 60 times these are among the benchmarks when considering a new vehicle. But Lexus believes there are some things, immeasurable things that matter more. Awe. Exhilaration. Joy. How a cabin feels feels like it was crafted with you in mind. The way an engine note resonates with your soul. Because a car that doesn't make you feel something is a car that stops short of amazing. That's the standard of amazing. Lexus experience. Amazing.

[Unknown]

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[Andrea Gunning]

I'm Andrea Gunning, host of the podcast Betrayal Police lieutenant Joel Kern used his badge to fool everyone, most of all his wife, Caroline.

[Tracy V. Wilson]

He texted, I've ruined our lives. You're going to want to divorce me.

[Andrea Gunning]

How far would he go to cover up what he'd done?

[Holly Fry]

The fact that you lied is absolutely horrific. And quite frankly, I question how many other women are out there that may bring forward allegations in the future.

[Andrea Gunning]

Listen to betrayal on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

[Unknown]

DNA test proves he is not the father. Now I'm taking the inheritance.

[Tracy V. Wilson]

Wait a minute, John, who's not the father?

[Unknown]

Well, Sam, luckily it's you're not the father week on the okay Storytime podcast, so we'll find out soon. This author writes, my father in law is trying to steal the family fortune worth millions from my son. Even though it was promised to us. He's trying to give it to his irresponsible son. But I have DNA proof that could get the money back. Hold up. They could lose their family and millions of dollars.

[Tom Brokaw]

Yeah. Yep.

[Unknown]

Find out how it ends by listening to the OK Storytime podcast on the iHeartRadio app, Apple Podcast, or wherever you get your podcasts.

[Tracy V. Wilson]

This is an iHeart podcast.