Sexual Liberty and Criminal Law Reform: The Story of Griswold v. Connecticut

Sexual Liberty and Criminal Law Reform: The Story of Griswold v. Connecticut

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Estelle Griswold, the Executive Director of the Planned Parenthood League of Connecticut (PPLC), could not have been more delighted. Just two days after she opened a Planned Parenthood birth control clinic at 79 Trumbull Street in New Haven, Connecticut, two police detectives were knocking on the door, seeking permission to search the premises. For most, the prospect of welcoming police scrutiny would be unfathomable. But police scrutiny is exactly what Griswold and Lee Buxton, a Yale Medical School obstetrician and the clinic’s medical director, hoped for when the clinic opened its doors on November 1, 1961. Just a few months earlier, the United States Supreme Court had dismissed a constitutional challenge to Connecticut’s birth control ban on the ground that, although the law was on the books, it was rarely enforced—a crucial fact that “deprive[d] these controversies of the immediacy which is an indispensable condition of constitutional adjudication.” Despite the Court’s pronouncement, Griswold and Buxton knew that the 1879 Connecticut law, which proscribed both using contraception and counseling others about contraception, was a real imposition in the lives of Connecticut citizens, and not simply a case of “harmless, empty shadows.” Although the law was rarely enforced against private physicians, who often prescribed contraception to their patients, it was used to prevent the operation of publicly-available birth control clinics that would make contraception accessible to those without the means to secure private medical care. And because the state allowed a health exception to the law, which permitted condoms, but not oral contraceptives or diaphragms, to be sold throughout the state, the ban also imposed particular burdens on Connecticut women. With these harms in mind, Griswold and Buxton opened their clinic in the hope that “someone will complain and that the State Attorney in New Haven will act to close the center.” Now, as she ushered Detectives Blazi and Berg into her office, Griswold could not contain her excitement. In the ninety-minute police interview, she did most of the talking. As Blazi took notes, Griswold eagerly proffered multiple copies of the clinic’s literature and pamphlets, all of which scrupulously detailed the clinic’s services and operations (including the procedure for fitting and instructing women in the use of a diaphragm and contraceptive jelly). Throughout the interview, she made clear her strong hope that she would be charged and prosecuted for violating the law, thereby creating the ideal conditions for a constitutional challenge. On November 10, she got her wish. Circuit prosecutor Julius Maretz issued arrest warrants for Griswold and Buxton. Accompanied by one of their lawyers, Catherine Roraback, the pair appeared at police headquarters that afternoon to surrender. Their crime? Aiding and abetting the violation of the Connecticut statute by providing women with instruction on and materials for contraception. Although it would require her arrest and a criminal prosecution, in the end, Estelle Griswold achieved her desired outcome. In 1965, the Supreme Court’s decision in Griswold v. Connecticut struck down the Connecticut birth control ban and famously announced a right to privacy emanating from the “penumbras” of various constitutional guarantees. Since then, Griswold’s logic has underwritten a broader commitment to reproductive rights—one that has expanded the right to contraception, secured a woman’s right to choose an abortion, and paved the way for legal recognition of same-sex marriages. For a case that stands at the core of the constitutional law canon, Griswold is surprisingly spare—the majority opinion occupies a mere seven pages in the U.S. Reports. Critically, its spareness is not limited to its length. Griswold’s logic, some have argued, is conceptually underdeveloped, inviting a multitude of interpretations. For some, Griswold is a meditation on the relationship between enumerated and unenumerated rights. For others, it is a reproductive rights case, laying a foundation for greater recognition of bodily autonomy. It has also been cast as a sex equality case, underscoring the gendered nature of the Connecticut contraceptive ban and gesturing toward the relationship between privacy and equality. For still others, it stands as a warning about the perils of judicial overreaching and creating rights out of whole cloth. This Essay offers an alternative interpretation of Griswold—one that has been woefully overlooked. Although we have come to regard it as a constitutional law case, or as a reproductive rights case, at bottom, Griswold was a criminal law case. Put differently, despite the majority’s discussion of penumbras and privacy, Griswold was, first and foremost, a case about prosecutions and policing. The challenged Connecticut statute carried a criminal penalty; and, critically, Griswold and Buxton were arraigned, charged, and tried before a court for violating it. More importantly, Griswold was not simply a decision conjured out of whole cloth, as critics have suggested. Rather, it was a case born of and rooted in a criminal law reform movement that sought to design limits on the state’s authority to police and enforce sexual mores. In this regard, Griswold and Buxton’s constitutional challenge was not merely about expanding access to birth control, but also part of a broader effort to reimagine the state’s use of criminal law as a means of enforcing moral conformity. Although criminal law has routinely been used to mark the boundary between licit and illicit sex, not all uses of the criminal law for regulating sex and sexuality have been viewed as desirable. Generally, the use of criminal law for marking and punishing coercive and nonconsensual sex has been deemed acceptable and appropriate, while criminal law’s use in marking and punishing consensual sex—particularly between two adults—has encountered more skepticism. The facts of Griswold bear this out. In overlooking Griswold’s criminal law antecedents, we have neglected this important aspect of the case and its legacy. This Essay recovers this history and situates Griswold in this historical debate about the scope and limits of the state’s authority to use the criminal law to enforce moral and sexual conformity. Expanding Griswold’s narrative to include its ties to the criminal law reform movement brings into focus the concerns about contraceptive access that predated Griswold—and continue to shape the contemporary debate over public funding for contraception. As importantly, the contrast between the 1960s, when the state used the criminal law to curtail contraceptive access and use, and the present, when contraceptive use is lawful but access to contraception remains uneven, calls into question decriminalization’s efficacy as a means of law reform.

Source Publication

Reproductive Rights and Justice Stories

Source Editors/Authors

Melissa Murray, Katherine Shaw, Reva B. Siegel

Publication Date

2019

Sexual Liberty and Criminal Law Reform: The Story of Griswold v. Connecticut

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