The Rights Revolution and the Modern Supreme Court
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As the tumult of the 1960s gave way to the 1970s, much had changed in American constitutional law. In 1965, the Supreme Court announced its decision in Griswold v. Connecticut (1965), a challenge to Connecticut’s contraception ban. Enacted in 1879, the ban prohibited the use and distribution of contraception—even to married couples. For years, birth control activists had sought repeal of the law through the political process, with no success. When a legal challenge to the law failed in Connecticut’s highest court, birth control advocates, led by the Planned Parenthood League of Connecticut (PPLC), turned their attention to a federal challenge arguing that the Connecticut law violated the US Constitution. PPLC envisioned a new legal challenge that would focus both on doctors who wished to advise patients about birth control and on married couples for whom pregnancy would entail serious health risks and complications. The case—Poe v. Ullman (1961)—argued that the Connecticut contraceptive ban violated the patients’ and physicians’ due process rights under the Fourteenth Amendment. In making this claim, PPLC relied on arguments that the American Civil Liberties Union (ACLU) first made in the context of the rights of criminal defendants. In these earlier cases, the ACLU had argued that individuals maintained a zone of privacy against unwarranted state intrusion and interference. Now, in the context of birth control, PPLC and its lawyers argued that the logic of privacy prevented the state from criminally proscribing the use of birth control. In the end, the Supreme Court dismissed the claim in Poe on jurisdictional grounds, concluding that the case was not yet ripe for review because the Connecticut contraception ban had not actually been enforced against the plaintiffs. Still, the privacy argument that the Poe plaintiffs raised resonated with Justice William O. Douglas. In an impassioned dissent, he observed that “full enforcement of the law . . . would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.” Such an intrusion into “the innermost sanctum of the home” constituted, in Douglas’s view, “an invasion of the privacy that is implicit in a free society.” Still eager for the Court to consider the merits of the law’s constitutionality, PPLC sought an opportunity to bring a live case and controversy before the Court. To do so, PPLC Executive Director Estelle Griswold opened a birth control clinic in New Haven, which immediately drew law enforcement attention. In just a few days, Griswold was arrested and charged with violating the Connecticut law, setting the stage for Griswold v. Connecticut. As in Poe v. Ullman, the logic of privacy loomed large in Griswold. PPLC argued that the Constitution afforded individuals some degree of privacy against undue government interference in the most intimate aspects of their lives. A majority of the Court agreed. In a 7–2 decision authored by Justice Douglas, the Court struck down the Connecticut contraceptive ban, and in so doing announced a right to privacy that was implicit in the “penumbras” of “specific guarantees in the Bill of Rights.” Critically, Douglas specifically tethered the privacy right to marriage— the Connecticut law had gone too far, inviting the state to police “the sacred precincts of marital bedrooms.”4 Going forward, married couples would enjoy a constitutional right to privacy that allowed them to make decisions about contraception and family planning. If the Griswold Court’s understanding of privacy allowed married couples the autonomy to make decisions about contraceptive use, it was silent on whether the unmarried enjoyed the same right. Seven years later, in Eisenstadt v. Baird (1972), the Court would take up the question, striking down a Massachusetts statute that prohibited unmarried persons from using birth control. As the Court reasoned, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” A year later, in Roe v. Wade (1973), the Court would further elaborate the individual’s right to privacy in the context of criminal abortion laws. Throughout the United States, criminal abortion laws forced women to leave the country in order to safely terminate a pregnancy. Those without the means for international travel resorted to black market abortion procedures that were unregulated and unsafe. These realities fueled grass-roots efforts to liberalize—or even repeal—state laws criminalizing abortion, with uneven results. In four jurisdictions, abortion laws were repealed entirely. In a handful of other jurisdictions, the repeal effort faltered and gave way to liberalization as legislatures relaxed their abortion restrictions to allow women to obtain an abortion if they secured the approval of a panel of physicians. While the liberalization effort was, for some, a step in the right direction, for others it echoed the logic of the underlying laws by divesting women of the autonomy to decide for themselves whether or not to carry a pregnancy to term.
Source Publication
With Liberty and Justice for All?: The Constitution in the Classroom
Source Editors/Authors
Steven A. Steinbach, Maeva Marcus, Robert Cohen
Publication Date
2022
Recommended Citation
Murray, Melissa, "The Rights Revolution and the Modern Supreme Court" (2022). Faculty Chapters. 1968.
https://gretchen.law.nyu.edu/fac-chapt/1968
