Griswold v. Connecticut eText - Primary Source

Primary Source

Executive director of Planned Parenthood of Connecticut, Estelle Griswold speaks with Dr. Charles Lee Buxton, Yale professor of obstetrics and gynecology. Griswold and Buxton opened an illegal birth control clinic to prompt their arrest and to subsequentlExecutive director of Planned Parenthood of Connecticut, Estelle Griswold speaks with Dr. Charles Lee Buxton, Yale professor of obstetrics and gynecology. Griswold and Buxton opened an illegal birth control clinic to prompt their arrest and to subsequently bring Connecticut's ban on birth control into trial. PLANNED PARENTHOOD OF CONNECTICUT. REPRODUCED BY PERMISSION. Published by Gale Cengage PLANNED PARENTHOOD OF CONNECTICUT. REPRODUCED BY PERMISSION.

Supreme Court decision

By: William O. Douglas; Arthur J. Goldberg; Hugo L. Black

Date: June 7, 1965

Source: Douglas, William O., Arthur J. Goldberg and Hugo L. Black. Griswold v. Connecticut, 381 U.S. 479. Available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case... ; website home page: http://caselaw.lp.findlaw.com (accessed June 11, 2003).

About the Authors: William O. Douglas (1898–1980) was an activist, liberal justice who served longer on the Supreme Court than any justice in history. Arthur Joseph Goldberg (1908–1990) passed the bar at age twenty, was appointed secretary of labor in 1960, and served on the Supreme Court from 1962 to 1965, resigning to accept a position as ambassador to the United Nations. Hugo Lafayette Black (1886–1971) was appointed to the Supreme Court in 1937 after serving in the U.S. Senate. His term was distinguished by his support of civil rights.

Introduction

For most of its first century, the United States considered the issue of birth control and the number of children to bear to be a matter between a husband and wife. The federal government became involved in decisions involving birth control with the 1873 Comstock Act, which forbid "obscene" materials from being sent through the interstate mails. This act was promoted by and named after Anthony Comstock, an anti-vice crusader, and was enforced against the distributors of birth control information, among other targets. Similar laws were passed in other states, including Connecticut, whose law banned not only the use of birth control devices but even materials discussing them. Some of these laws were rooted in concerns that "less desirable" immigrant Catholic families from eastern and southern Europe were having more children than Protestant families. Despite these laws, by the end of the nineteenth century the average number of children per family had dropped to four, as fewer children were needed on the farm and to work in industry.

In the early 1900s, Margaret Sanger and other reformers advocated informing the public about birth control, but Sanger was arrested multiple times for her efforts. In 1916, the federal government indicted Sanger under the Comstock Act for sending birth control information through the mail, and although the charges were dropped, in People v. Sanger (1918) the New York Court of Appeals upheld the constitutionality of a state law prohibiting the selling of contraceptive devices or the discussion of them. Despite her arrests, Sanger remained active and founded Planned Parenthood to advance her views. Doctors, though, were generally hostile to artificial birth control until 1937, when the American Medical Association reversed its stand against contraception. In the 1960s, social attitudes favored individual freedom, and new birth control devices, such as the Pill, were developed. The director of Connecticut's Planned Parenthood division baited the police into arresting him because he wanted to test Connecticut's anti-birth control law in the court system.

Significance

In Griswold v. Connecticut, the Supreme Court struck down the state's law, ruling that the right to privacy denied the state the right to ban the use of artificial contraception. The Court stated that all married couples had the right to privacy, with different justices finding that right in different constitutional amendments. William Douglas, for example, reasoned that certain amendments had "penumbras," or shadows, that created a "zone of privacy," while Arthur Goldberg found the right to privacy in the Ninth Amendment. Hugo Black, though, dissented from the majority, holding that the court cannot create rights that are not enumerated in the Constitution. Many Court observers agreed, arguing that Douglas and the majority were creating "rights" that had no constitutional basis.

The "zone of privacy" was invoked eight years later in Roe v. Wade, the landmark Supreme Court case that affirmed a woman's right to have an abortion. Although the Court has slightly narrowed its decision in Roe, various attempts to severely restrict abortion rights, even to overturn the Court's decision, have failed. Further, the Court has upheld a right to privacy as it pertains to other issues. While the Court upheld a state law against sodomy in 1986, even that issue was up for Court reexamination in 2003. This right to privacy, essentially created in Griswold, still exists today.

Primary Source: Griswold v. Connecticut [excerpt]

SYNOPSIS: Justice Douglas first points out that privacy is not specifically mentioned in the Constitution. He then surveys past cases that have inferred a right to privacy from various constitutional amendments. Justice Goldberg concurs but locates that right to privacy in the Ninth Amendment rather than in "penumbras" coming from a variety of amendments. In his dissent, Justice Black states that there is no fundamental right to privacy in the Constitution and that the court cannot simply create such a right.

Mr. Justice Douglas delivered the opinion of the Court.…

Coming to the merits, we are met with a wide range of questions that implicate the Due Process

Clause of the Fourteenth Amendment.… We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice—whether public or private or parochial—is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

… The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read… and freedom of inquiry, freedom of thought, and freedom to teach—indeed the freedom of the entire university community.… Without those peripheral rights the specific rights would be less secure.…

In NAACP v. Alabama …, we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." … In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members.…

Those cases involved more than the "right of assembly"—a right that extends to all irrespective of their race or ideology.… The right of "association," like the right of belief … is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.

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 citizen 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." …

We have had many controversies over these penumbral rights of "privacy and repose." …

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. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama…. 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.

Reversed.…

Mr. Justice Goldberg, whom the Chief Justice and Mr. Justice Brennan join, concurring.…

The Court stated many years ago that the Due Process Clause protects those liberties that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." …

This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights. The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.

The Ninth … Amendment … was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.…

Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.

While this Court has had little occasion to interpret the Ninth Amendment, "[i]t cannot be presumed that any clause in the constitution is intended to be without effect." In interpreting the Constitution, "real effect should be given to all the words it uses." To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment.…

I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.… The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.…

The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family—a relation as old and as fundamental as our entire civilization—surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

… The vice of the dissenters' views is that it would permit such experimentation by the States in the area of the fundamental personal rights of its citizens. I cannot agree that the Constitution grants such power either to the States or to the Federal Government.…

In sum, I believe that the right of privacy in the marital relation is fundamental and basic—a personal right "retained by the people" within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners' convictions must therefore be reversed.…

Mr. Justice Black, with whom Mr. Justice Stewart joins, dissenting.

… There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe—except their conclusion that the evil qualities they see in the law make it unconstitutional.…

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not.…

I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

… While I completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of "civilized standards of conduct." Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination—a power which was specifically denied to federal courts by the convention that framed the Constitution.…

If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the "[collective] conscience of our people" is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court.

Further Resources

BOOKS

Ball, Howard, and Phillip J. Cooper. Of Power and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution. New York: Oxford University Press, 1992.

Dixon, Robert Galloway. The Right of Privacy; a Symposium on the Implications of Griswold v. Connecticut, 381 U.S. 497 (1965). New York: Da Capo Press, 1971.

Douglas, William O. The Court Years, 1939–1975: The Autobiography of William O. Douglas. New York: Random House, 1980.

Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Macmillan, 1994.

Nelson, Deborah. Pursuing Privacy in Cold War America. New York: Columbia University Press, 2002.

WEBSITES

The Impact of Legal Birth Control and the Challenges that Remain. Available online at http://www.plannedparenthood.org/library/facts/griswolddone... ; website home page: http://www.plannedparenthood.org (accessed March 16, 2003).