July 27, 2022 • 39 mins
Griswold v. Connecticut was the U.S. supreme court decision that overturned laws banning contraception – at least, for married couples. It wasn’t the first SCOTUS decision to mention the concept of privacy, but it was a major one.
Research:
- Bailey, Martha J. “’Momma’s Got the Pill’: How Anthony Comstock and Griswold v. Connecticut Shaped US Childbearing.” American Economic Review 2010, 100. http://www.aeaweb.org/articles.php?doi=10.1257/aer.100.1.98
- Brannen, Daniel E., Jr., et al. "Griswold v. Connecticut (1965)." Supreme Court Drama: Cases That Changed America, edited by Lawrence W. Baker, 2nd ed., vol. 1: Individual Liberties, UXL, 2011, pp. 70-74. Gale In Context: Opposing Viewpoints, link.gale.com/apps/doc/CX1929200026/GPS?u=mlin_n_melpub&sid=bookmark-GPS&xid=d079c402. Accessed 5 July 2022.
- Burnette, Brandon R. “Comstock Act of 1873 (1873).” The First Amendment Encyclopedia. 2009. https://mtsu.edu/first-amendment/article/1038/comstock-act-of-1873
- Cornell Law School Legal Information Institute. “Griswold v. Connecticut (1965).” https://www.law.cornell.edu/wex/griswold_v_connecticut_(1965)
- Court, U.S. Supreme. "Griswold v. Connecticut (1965)." Civil Rights in America, Primary Source Media, 1999. American Journey. Gale In Context: U.S. History, link.gale.com/apps/doc/EJ2163000097/GPS?u=mlin_n_melpub&sid=bookmark-GPS&xid=4639ad46. Accessed 5 July 2022.
- Finlay, Nancy. “Taking on the State: Griswold v. Connecticut.” Connecticut History. https://connecticuthistory.org/taking-on-the-state-griswold-v-connecticut/
- Garrow, David J. “The Legal Legacy of Griswold v. Connecticut.” American Bar Association. 4/1/2011. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/human_rights_vol38_2011/human_rights_spring2011/the_legal_legacy_of_griswold_v_connecticut/
- Lepore, Jill. “To Have and to Hold: Reproduction, Marriage and the Constitution.” The New Yorker. 5/18/2015. https://www.newyorker.com/magazine/2015/05/25/to-have-and-to-hold
- Lord, Alexandra M. “The Revolutionary 1965 Supreme Court Decision That Declared Sex a Private Affair.” Smithsonian. 5/19/2022. https://www.smithsonianmag.com/smithsonian-institution/the-revolutionary-1965-supreme-court-decision-that-declared-sex-was-a-private-affair-180980089/
- McBride, Alex “Griswold v. Connecticut.” The Supreme Court. Thirteen: Media With Impact. https://www.thirteen.org/wnet/supremecourt/rights/landmark_griswold.html
- Minto, David. “Perversion by Penumbras: Wolfenden, Griswold, and the Transatlantic Trajectory of Sexual Privacy.” American Historical Review. October 2018.
- Morgan, Jason. “One ‘Right,’ Many Wrongs.” The Human Life Review. Winter 2014.
- Moskowitz, Daniel B. "A matter of privacy: Griswold V. Connecticut, 381 U.S. 479 (1965): the underlying right to privacy." American History, vol. 52, no. 3, Aug. 2017, pp. 22+. Gale In Context: U.S. History, link.gale.com/apps/doc/A495033804/GPS?u=mlin_n_melpub&sid=bookmark-GPS&xid=293a39ac. Accessed 5 July 2022.
- UK Parliament. “Wolfenden Report.” https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/relationships/collections1/sexual-offences-act-1967/wolfenden-report-/
- Vile, John. “Griswold v. Connecticut (1965).” The First Amendment Encyclopedia. 2009. https://www.mtsu.edu/first-amendment/article/579/griswold-v-connecticut
- Yale Medicine Magazine. “An arrest in New Haven, contraception and the right to privacy.” https://medicine.yale.edu/news/yale-medicine-magazine/article/an-arrest-in-new-haven-contraception-and-the/
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Welcome to Stuff you missed in History Class, a production
of I Heart Radio. Hello, and welcome to the podcast.
I'm Tracy V. Wilson and I'm Holly Fry. I've been
circling the idea of an episode on Griswold versus Connecticut
(00:21):
for years. That's the U. S. Supreme Court decision that
overturned 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
versus Jackson Women's Health Organization is really what finally propelled
(00:42):
it up to the top. That's the decision that came
out just recently which overturned Roe versus Wade and Planned
Parenthood versus Casey. And in the concurring opinion that he
wrote on this case, Justice Claris Thomas wrote, quote, in
future are cases, we should reconsider all of this Court's
(01:03):
substantive due process precedents, including Griswold, Lawrence and Obergefeld. 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
(01:26):
the US to mention the right of a concept of 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 versus Wade, not the outcome,
but like the reasoning of how they got there, which
was essentially the abortion was also protected under a right
(01:47):
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, and a lot of other
decisions that came after it, beyond just the ones that
were mentioned in Thomas's concurring opinions. So that's what we're
talking about today. Heads up. Obviously we're gonna be talking
(02:08):
a lot about contraception in this episode. There's also a
bit about abortion and some things related to pregnancy and
birth related trauma. 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 eighteen seventy three,
(02:31):
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. Comstock served in the
Union Army during the U S Civil War. His upbringing
(02:53):
had been deeply conservative, and during his time in the
army he really disapproved of a lot of his fellow
soldier's behavior, especial really things like gambling and drinking, using tobacco,
and swearing, And then for their part, his fellow soldiers
seemed to have seen him mostly as a sanctimonious prude.
After the war was over, Comstock moved to New York,
(03:13):
where he similarly really disapproved of the prevalence of things
like sex work and explicit literature, 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 y m c A, before heading up a
new organization just for that purpose that was the New
(03:34):
York Society for the Suppression of Vice. These two organizations
continued to be closely connected. Y M. C, a leader,
served on the society's board. 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
(03:55):
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.
If he really argued that all of these things were
correcting children, and they were encouraging crime, and he thought
(04:17):
they should all be outlawed. The Comstock Act was signed
into law in March of eighteen seventy three. 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
(04:39):
or intended 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
(05:00):
was punishable with a fine of not less than one
hundred dollars or more than five hundred dollars, or hard
labor of not less than one year or more than
ten years, or both. 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
(05:21):
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 thirty six hundred people,
(05:44):
and he claimed that he had destroyed more than a
hundred and sixty tons of literature that was, at least
in his opinion, obscene. 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 twentieth century, nearly every
(06:08):
state had some kind of anti obscenity law. Ultimately, thirty
one states legally defined information about contraception as obscenity, and
twenty four states also banned the sale of contraceptives. So
to point out one of the links back to an
earlier episode of the podcast when we talked about Catherine
(06:30):
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 hymns and linings of her clothes. Because diaphragms were illegal.
This was why contraceptive advocates and other reformers pushed for
(06:51):
the repeal of the Comstock Act and all the various
state little Comstocks for decades. In nineteen sixteen, 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
(07:15):
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
was specific to New York. At the federal level, a
similar case started dismantling the Comstock Acts prohibitions on birth
(07:35):
control in nineteen thirty six. This case was United States
versus One package of Japanese pessaries, which was heard in
the United States Court of Appeals for the Second Circuit
in New York City. This package named in the case
was a box of a hundred and twenty contraceptive diaphragms.
The physician Hannah Stone, who was working with Margaret Sanger,
(07:56):
had tried to import from Japan. The package was used
at customs because importing contraceptives was illegal under the Teriff
Act of nineteen thirty 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 Teriff Act,
so this case was filed against the package itself. Stone
(08:20):
and her attorneys stood in for the package at trial.
This is a weirder thing that happens in the laws
sometimes where you file suit against an inanimate object. The
US 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
(08:41):
the Terriff 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 docter. But this ruling didn't
(09:02):
overturn the laws that were still on the books in
various states. 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 nineteen sixty.
But at that point, Connecticut's law remained in place, and
we'll get to that after a sponsor break. Connecticut's anti
(09:33):
contraception law dated back to eighteen seventy nine. 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,
(09:56):
or instrument for the purposes of preventing conception shall be
find not less than forty dollars or imprisoned not less
than sixty days. The law also said, quote any person
who assists a bets, counsels, causes, hires, or commands another
to commit any offense may be prosecuted and punished as
(10:17):
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. People in Connecticut
lobbied for the repeal of the law for decades. This
escalated in ninety three after Katherine Hotton Hepburn and two
(10:38):
of her friends established the Connecticut branch of the American
Birth Control League. Katherine Hotton Hepburn was the mother of
actor Katherine Hepburn, and the American Birth Control League later
became known as Planned Parenthood. But in night, authorities rated
a contraceptive clinic in Waterbury, Connecticut and pressed charges against
(10:59):
its medical staff, which put an end to services at
the clinic and also put a damper on the rest
of the movement. 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
(11:19):
of its leaders, including Margaret Singer, 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
(11:39):
on preventing the quote wrong people from reproducing. This entire
idea of eugenics was simultaneously racist, ablest, 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 and particular led to horrific human rights abuses
(12:03):
and was a major influence on Nazi racial policy. But
what we're really focused on in this episode today is
access to contraception. Eventually, Connecticut mostly stopped in forcing its
anti contraception law, but since it was still in the books,
this led to disparities and who could get contraceptives. Condoms
(12:24):
were available at some drug stores, but they weren't an
option for everyone, especially for people whose partners refused to
wear condoms, or for people who needed a more discreet
way to prevent pregnancy without their partner being involved. Middle
and upper class people, especially married couples, who had money
and access to private medical care, could usually find a
(12:46):
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 off and 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.
(13:10):
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.
In nineteen forty, the Connecticut Supreme Court heard State versus Nelson,
involving a case against two doctors who had been running
a birth control clinic, one that authorities seemed to have
(13:33):
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 two 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
(13:56):
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. 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
(14:18):
upheld the law, that other clinics were also going to
be targeted just led a lot of people to make
the desisn't to shut down. So three years later, Yale
Medical School professor Wilder Tileston 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
(14:38):
became pregnant. This led to the Connecticut Supreme Court case
of Tileston versus. Ullman. Allman was the Connecticut States Attorney
Abraham Ullman. The Connecticut Supreme Court rejected Tileston's arguments, noting
that people already had a way to prevent pregnancy that
was quote positive and certain in results. That method was abstinence.
(15:02):
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. On June twenty three,
nineteen sixty the f d A approved the first oral contraceptive.
There's more about this in our Nelson Pill Hearings episode
(15:25):
from May. By this point, public opinion polls suggested that
more than seventy percent 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
(15:47):
a renewed urgency to the effort to get Connecticut's law repealed.
In nineteen sixty one, the U. S. Supreme Court heard
two cases related to Connecticut's anti contraception law and was
trueback versus Ullman. Again, that's the same Abraham Aulman as before.
Louise and Dave Truebeck had gotten married in ninety eight
(16:08):
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 true Back's case had originally been part
of a group of other cases, but they elected not
to remain anonymous and their case was heard separately. The
(16:29):
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
(16:51):
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. In a
(17:15):
five to four 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 set in part quote,
this Court cannot be umpire to debates concerning harmless empty shadows.
(17:38):
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. 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 Trobec versus Allman without further comment. As part
(17:59):
as the same set of decisions, the dissenting justices in
Poe versus Almen 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.
(18:22):
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
(18:43):
judgment and 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, discreete 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. So after this, it
(19:08):
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 nineteenth,
nine sixty one, Estelle Griswold and Charles Lee Buxton decided
it was time to get arrested. Griswold was executive director
of the Planned Parenthood League of Connecticut, Buxton was its
(19:30):
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 twenty, nineteen sixty one,
(19:51):
just a day after the Supreme Court decision, Griswold and
Buxton announced that they would be opening a contraceptive clinic
in New Haven. The clinic opened on November one of
that year, advertising its services specifically to married couples. They
saw ten patients on the first day in operation, and
they also held a press conference. Two days later, police
(20:13):
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.
On June tenth, police returned with lawrence for Griswold and
Buxton's arrest, and the clinic was shut down. Griswold and
(20:34):
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 find one hundred dollars each
and after a series of appeals, their case was before
the U. S. Supreme Court under Chief Justice Earl Warren.
The Warren Court has come up several times on the show.
(20:57):
Earl Warren was Chief Justice when Loving versus Virginia, Brown
versus Board of Education, and Hernandez versus Texas were all decided.
He was also Chief Justice during Yates versus United States,
which we talked about in our episode on cohen'telpro. We've
also talked about his time as Governor of California on
a couple of episodes, including our two parter on Executive
(21:18):
Order ninety six and the mass incarceration of Japanese Americans
during World War Two. We will get to the Court's
decision after we pause for a sponsor break. On June seven,
(21:38):
five and a seven to two ruling, the U. S.
Supreme Court issued its decision in Griswold versus 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
descents and po versus Ullman, which read earlier, authored the
(22:02):
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. Harland the Second and Byron
White each issued their own concurring opinions, and then Justices Hugo.
Black and Potter Stewart dissented, as they had also done
(22:23):
in po versus Almond, and each of them wrote their
own descents. The Court found that one Griswold and Buxton
did have standing in this matter, something that had been
an 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
(22:43):
pnumbra of specific Guarantees of the Bill of Rights. 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
(23:04):
we set up at the very top of the show,
substantive due process is the idea that the courts can
protect unenumerated rights, and in Griswold versus Connecticut. The court
was arguing that the rights of privacy was found in
the pannumbra, or the shadow of other rights that are mentioned.
The majority opinion referenced a series of previous cases in
(23:26):
which protected rights were interpreted as being broader than what
was spelled out in the Constitution. For example, in Mayer
versus 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 fourteenth Amendment, which says that
no state shall quote deprive any person of life, liberty,
(23:50):
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 fourt 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. The majority opinion in
(24:14):
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.
(24:37):
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. Having
been through all of that, the majority opinion read quote
the foregoing cases suggests that specific guarantees in the Bill
(24:58):
of Rights have pnumbers formed by emanations from those guarantees
to help give them life and substance. Various guarantees create
zones of privacy. The right of association contained in the
pannumbra of the First Amendment is one, as we have seen.
The Third Amendment, in its prohibition against the quartering of
(25:18):
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
(25:38):
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. Yeah, that
(25:59):
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 just 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. Quote. The present case then concerns
(26:21):
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. It went
(26:42):
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.
So all those various concuring opinions agreed with the idea
that the right to privacy could be inferred from some
(27:05):
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
descent read in part quote, I feel constrained to add
(27:25):
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. Justice Potter
Stewart wrote in his dissent quote, I think this is
an uncommonly silly law. As a practical matter, the law
(27:47):
is obviously unenforceable except in the oblique context of the
present case. It's a philosophical matter. I believe the use
of contraceptives in the relationship of marriage should be left
to personal and private choice. They 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
(28:09):
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 assinine. We are asked to hold that it
violates the United States Constitution, and that I cannot do.
The majority, though, had found that it violated the Constitution,
(28:31):
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
(28:53):
of access to contraception, but it was definitely incomplete. Number One,
it applied only of married couples. The focus was on
the idea that privacy was intrinsic to a married relationship,
so laws forbidding contraceptive use or counseling for single people
were unaffected. Number two, This idea that there were pnumbras
(29:15):
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. Beyond that, there were people,
particularly women's rights activists, who raised concerns about this ruling's focus.
(29:37):
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
(30:00):
in particular who thought that the court should have used
a different reasoning, like maybe one that interpreted the Fourteenth
Amendments equal protection and do 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
(30:20):
of people living at the time who were living outside
the gender binary in various ways. But really the focus
of the response of this in nineteen sixty five was
on women. During research for this episode, Tracy read a
paper in the American Historical Review suggested that this privacy
angle might have been influenced by the Wolfenden Report, which
was published in the u K in nineteen fifty seven.
(30:43):
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 decriminalis a sation of homosexuality.
In the words of that report, their quote must remain
(31:04):
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. As
(31:25):
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 nineteen sixty nine, the
Supreme Court sided Griswold be Connecticut, and its decision in
Stanley versus Georgia, which found that possession of obscene materials
was protected in part because of a right to privacy.
(31:47):
In ninety two, the Court struck down in Massachusetts law
banning the distribution of contraceptives two unmarried people. Although the
question before the court was whether this law violated the
privacy standard established in Griswold versus Connecticut, the Court found
that it violated the Fourteenth Amendment Due process clause. In
(32:08):
nineteen seventy three, the Court issued its decision in Row
versus Wade, finding the right to privacy established in Griswold
as being inherent in the due process clause of the
Fourteenth 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
(32:29):
to protecting a person's health and to quote, the potentiality
of human life. In nine six, the Supreme Court cited
Griswold versus Connecticut and its ruling in Bowers versus 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
(32:53):
was overturned in two thousand three in Lawrence versus Texas,
which was related to both the right to privacy and
to the due process clause of the Fourteenth Amendment, and
the Court once again issued a ruling that was partly
underpinned by Griswold versus Connecticut, and that was Oberga Fell
versus Hodges. This decision recognized same sex marriages as legal nationwide,
(33:17):
and it cited Griswold at several points, including the decisions
description of marriage as a right that's older than the
Bill of Rights. And most recently, the Court issued its
decision in Dobbs versus Jackson Women's Health Organization, overturning Roe v. Wade.
This decision also overturned Planned Parenthood v. Casey, in which
(33:37):
the Court had upheld Roe v. Wade and a constitutional
right to abortion. In 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 versus Connecticut, but in the Court's opinion, Roe versus
(33:58):
Wade was different from Griswold versus Connecticut because it did
not involve quote, the destruction of what Row called potential life.
So the majority opinion in this case noted the connection
to several cases we just mentioned. There was Griswald, there
was Eisenstat versus Bared, which is the one that overturned
(34:18):
the Massachusetts law barring contraception for unmarried people, and also
Oberger Fell, 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, and his concurring opinion,
Clarence Thomas wrote that future cases should reconsider rulings that
have relied on substantive due process, including Griswald, Lawrence, and
(34:42):
Oberger Fell. So that suggests otherwise, um, that is Griswold
versus Connecticut, which, as a side of 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 Row versus Wade. Do
(35:03):
you have some listener mail, I do I have. I
know there's a lot of things in this episode that
are tough for a lot of folks to think about.
So I chose a listener mail that is just about cats. Uh.
This is from Jan. Jan wrote, Hi, Holly and Tracy,
writing to tell you how much I love your Steff
fumus in History podcast. I appreciate all of your research
(35:23):
into things I've never heard of before. I always learn
a lot from you too, as well as Holly's podcast
Criminalio with Maria TREMARKI. Both are always excellent. I also
wanted to shamelessly pull out of old Tommy wallet with
photos and brag about my kittie. Her name is Princess
Peach a k A. Peach or Peachy, and she has
a weird habit. She steals single socks from either the
(35:45):
dirty clothes hampers or the clean sock bucket. I have
brought her and her sister Rosalina many toys, but when
we come home there's inevitably a number of single socks
she has picked up while we have been out, and
they're all sitting at the top of the stairs where
she waits for us. She likes to carry them around,
singing the song of her people. She either thinks their
prey or her babies. I can't decide, because sometimes she
(36:06):
does that model pose where she's half laying down and
half sitting, and she'll lounge like that with her sock.
Other times she likes to attack her sock, or drop
it from a high place and attack it. So the
weirdest thing about the socks, though, is the fact that
sometimes she likes to take them for a dip. Literally.
I cannot tell you how many times we have thrown
a sock away because we find she has dropped it
and then abandoned it into the toilet. She also likes
(36:30):
to dunk them in her water bowls. Sometimes I find
a soggy sock on the floor and I cringe, wondering
if it's toilet water or her drinking water, especially since
I have four young kids who sometimes don't flush. Here
are a few photos of Peachy. She has axema and
scratches her face to bits. She's on pills now and
sometimes she has to wear funny collars. Thanks for letting
(36:50):
me tell some strangers about my kitty, and thank you
for being so great about letting adults continue to learn
new things about history. It was always a favorite in school,
and your work as a bomb for me. Jan Um
and so uh Jan has lots of pictures of kitty cats. Um,
and they are all incredibly adorable. One includes one of
the kitties as a teeny teeny baby kitten sitting on
(37:13):
top of one of those toilet paper holders. Um. That's
like a little like almost a little cage for the
toilet paper roll to sit on its side. It's incredibly cute. Um.
One of the reasons that I wanted to read this episode,
besides just the part that it's just about kitties, is
that one of my cats, Opal also seems to have
(37:35):
a weird fixation with the toilet. Uh, not with sacks,
just with the toilet. What she will do is she
will chase you into the bathroom when you go to
use the bathroom, and then when we always put the
lid down so that the cats don't get into the water,
and she will jump onto the lid, and as you
try to flush the toilet, she will try to attack
(37:56):
your hand. And I don't understand what the processes here, um,
but if if she is prevented, like I sometimes will
just kind of hold her back a little bit because
I don't I don't want her to grab my hand
while I'm trying to flash the toilet. She will look
with a very betrayed expression and then try to try
(38:17):
to like grab your hand as you take it away
from the toilet handle. Um, I don't know what's up
with that kiddie behavior. But man, all of these Princess
Peach is cute. Yeah, all of these pictures are so cute.
And there's also a little video of like the trail
of socks um across the house. Uh So, anyway, thank
(38:38):
you so much Stan for all of these cat pictures
in this cat story, like it all brightened brightened my
day to read all of this. So if you would
like to uh send us a note about this or
any other podcast where History podcast that I hurt radio
dot com. We're also all over social media at missing History.
That's where I'll find our Facebook, Twitter, Interest, and Instagram.
(39:00):
And you can subscribe to our show on the I
heart Radio app or wherever you like to get your podcasts.
Stuff You Missed in History Class is a production of
I Heart Radio. For more podcasts from I Heart Radio,
visit the I heart Radio app, Apple Podcasts, or wherever
(39:20):
you listen to your favorite shows.
Welcome to Stuff you missed in History Class, a production
of I Heart Radio. Hello, and welcome to the podcast.
I'm Tracy V. Wilson and I'm Holly Fry. I've been
circling the idea of an episode on Griswold versus Connecticut
(00:21):
for years. That's the U. S. Supreme Court decision that
overturned 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
versus Jackson Women's Health Organization is really what finally propelled
(00:42):
it up to the top. That's the decision that came
out just recently which overturned Roe versus Wade and Planned
Parenthood versus Casey. And in the concurring opinion that he
wrote on this case, Justice Claris Thomas wrote, quote, in
future are cases, we should reconsider all of this Court's
(01:03):
substantive due process precedents, including Griswold, Lawrence and Obergefeld. 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
(01:26):
the US to mention the right of a concept of 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 versus Wade, not the outcome,
but like the reasoning of how they got there, which
was essentially the abortion was also protected under a right
(01:47):
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, and a lot of other
decisions that came after it, beyond just the ones that
were mentioned in Thomas's concurring opinions. So that's what we're
talking about today. Heads up. Obviously we're gonna be talking
(02:08):
a lot about contraception in this episode. There's also a
bit about abortion and some things related to pregnancy and
birth related trauma. 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 eighteen seventy three,
(02:31):
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. Comstock served in the
Union Army during the U S Civil War. His upbringing
(02:53):
had been deeply conservative, and during his time in the
army he really disapproved of a lot of his fellow
soldier's behavior, especial really things like gambling and drinking, using tobacco,
and swearing, And then for their part, his fellow soldiers
seemed to have seen him mostly as a sanctimonious prude.
After the war was over, Comstock moved to New York,
(03:13):
where he similarly really disapproved of the prevalence of things
like sex work and explicit literature, 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 y m c A, before heading up a
new organization just for that purpose that was the New
(03:34):
York Society for the Suppression of Vice. These two organizations
continued to be closely connected. Y M. C, a leader,
served on the society's board. 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
(03:55):
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.
If he really argued that all of these things were
correcting children, and they were encouraging crime, and he thought
(04:17):
they should all be outlawed. The Comstock Act was signed
into law in March of eighteen seventy three. 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
(04:39):
or intended 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
(05:00):
was punishable with a fine of not less than one
hundred dollars or more than five hundred dollars, or hard
labor of not less than one year or more than
ten years, or both. 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
(05:21):
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 thirty six hundred people,
(05:44):
and he claimed that he had destroyed more than a
hundred and sixty tons of literature that was, at least
in his opinion, obscene. 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 twentieth century, nearly every
(06:08):
state had some kind of anti obscenity law. Ultimately, thirty
one states legally defined information about contraception as obscenity, and
twenty four states also banned the sale of contraceptives. So
to point out one of the links back to an
earlier episode of the podcast when we talked about Catherine
(06:30):
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 hymns and linings of her clothes. Because diaphragms were illegal.
This was why contraceptive advocates and other reformers pushed for
(06:51):
the repeal of the Comstock Act and all the various
state little Comstocks for decades. In nineteen sixteen, 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
(07:15):
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
was specific to New York. At the federal level, a
similar case started dismantling the Comstock Acts prohibitions on birth
(07:35):
control in nineteen thirty six. This case was United States
versus One package of Japanese pessaries, which was heard in
the United States Court of Appeals for the Second Circuit
in New York City. This package named in the case
was a box of a hundred and twenty contraceptive diaphragms.
The physician Hannah Stone, who was working with Margaret Sanger,
(07:56):
had tried to import from Japan. The package was used
at customs because importing contraceptives was illegal under the Teriff
Act of nineteen thirty 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 Teriff Act,
so this case was filed against the package itself. Stone
(08:20):
and her attorneys stood in for the package at trial.
This is a weirder thing that happens in the laws
sometimes where you file suit against an inanimate object. The
US 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
(08:41):
the Terriff 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 docter. But this ruling didn't
(09:02):
overturn the laws that were still on the books in
various states. 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 nineteen sixty.
But at that point, Connecticut's law remained in place, and
we'll get to that after a sponsor break. Connecticut's anti
(09:33):
contraception law dated back to eighteen seventy nine. 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,
(09:56):
or instrument for the purposes of preventing conception shall be
find not less than forty dollars or imprisoned not less
than sixty days. The law also said, quote any person
who assists a bets, counsels, causes, hires, or commands another
to commit any offense may be prosecuted and punished as
(10:17):
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. People in Connecticut
lobbied for the repeal of the law for decades. This
escalated in ninety three after Katherine Hotton Hepburn and two
(10:38):
of her friends established the Connecticut branch of the American
Birth Control League. Katherine Hotton Hepburn was the mother of
actor Katherine Hepburn, and the American Birth Control League later
became known as Planned Parenthood. But in night, authorities rated
a contraceptive clinic in Waterbury, Connecticut and pressed charges against
(10:59):
its medical staff, which put an end to services at
the clinic and also put a damper on the rest
of the movement. 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
(11:19):
of its leaders, including Margaret Singer, 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
(11:39):
on preventing the quote wrong people from reproducing. This entire
idea of eugenics was simultaneously racist, ablest, 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 and particular led to horrific human rights abuses
(12:03):
and was a major influence on Nazi racial policy. But
what we're really focused on in this episode today is
access to contraception. Eventually, Connecticut mostly stopped in forcing its
anti contraception law, but since it was still in the books,
this led to disparities and who could get contraceptives. Condoms
(12:24):
were available at some drug stores, but they weren't an
option for everyone, especially for people whose partners refused to
wear condoms, or for people who needed a more discreet
way to prevent pregnancy without their partner being involved. Middle
and upper class people, especially married couples, who had money
and access to private medical care, could usually find a
(12:46):
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 off and 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.
(13:10):
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.
In nineteen forty, the Connecticut Supreme Court heard State versus Nelson,
involving a case against two doctors who had been running
a birth control clinic, one that authorities seemed to have
(13:33):
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 two 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
(13:56):
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. 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
(14:18):
upheld the law, that other clinics were also going to
be targeted just led a lot of people to make
the desisn't to shut down. So three years later, Yale
Medical School professor Wilder Tileston 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
(14:38):
became pregnant. This led to the Connecticut Supreme Court case
of Tileston versus. Ullman. Allman was the Connecticut States Attorney
Abraham Ullman. The Connecticut Supreme Court rejected Tileston's arguments, noting
that people already had a way to prevent pregnancy that
was quote positive and certain in results. That method was abstinence.
(15:02):
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. On June twenty three,
nineteen sixty the f d A approved the first oral contraceptive.
There's more about this in our Nelson Pill Hearings episode
(15:25):
from May. By this point, public opinion polls suggested that
more than seventy percent 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
(15:47):
a renewed urgency to the effort to get Connecticut's law repealed.
In nineteen sixty one, the U. S. Supreme Court heard
two cases related to Connecticut's anti contraception law and was
trueback versus Ullman. Again, that's the same Abraham Aulman as before.
Louise and Dave Truebeck had gotten married in ninety eight
(16:08):
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 true Back's case had originally been part
of a group of other cases, but they elected not
to remain anonymous and their case was heard separately. The
(16:29):
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
(16:51):
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. In a
(17:15):
five to four 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 set in part quote,
this Court cannot be umpire to debates concerning harmless empty shadows.
(17:38):
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. 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 Trobec versus Allman without further comment. As part
(17:59):
as the same set of decisions, the dissenting justices in
Poe versus Almen 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.
(18:22):
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
(18:43):
judgment and 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, discreete 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. So after this, it
(19:08):
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 nineteenth,
nine sixty one, Estelle Griswold and Charles Lee Buxton decided
it was time to get arrested. Griswold was executive director
of the Planned Parenthood League of Connecticut, Buxton was its
(19:30):
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 twenty, nineteen sixty one,
(19:51):
just a day after the Supreme Court decision, Griswold and
Buxton announced that they would be opening a contraceptive clinic
in New Haven. The clinic opened on November one of
that year, advertising its services specifically to married couples. They
saw ten patients on the first day in operation, and
they also held a press conference. Two days later, police
(20:13):
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.
On June tenth, police returned with lawrence for Griswold and
Buxton's arrest, and the clinic was shut down. Griswold and
(20:34):
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 find one hundred dollars each
and after a series of appeals, their case was before
the U. S. Supreme Court under Chief Justice Earl Warren.
The Warren Court has come up several times on the show.
(20:57):
Earl Warren was Chief Justice when Loving versus Virginia, Brown
versus Board of Education, and Hernandez versus Texas were all decided.
He was also Chief Justice during Yates versus United States,
which we talked about in our episode on cohen'telpro. We've
also talked about his time as Governor of California on
a couple of episodes, including our two parter on Executive
(21:18):
Order ninety six and the mass incarceration of Japanese Americans
during World War Two. We will get to the Court's
decision after we pause for a sponsor break. On June seven,
(21:38):
five and a seven to two ruling, the U. S.
Supreme Court issued its decision in Griswold versus 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
descents and po versus Ullman, which read earlier, authored the
(22:02):
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. Harland the Second and Byron
White each issued their own concurring opinions, and then Justices Hugo.
Black and Potter Stewart dissented, as they had also done
(22:23):
in po versus Almond, and each of them wrote their
own descents. The Court found that one Griswold and Buxton
did have standing in this matter, something that had been
an 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
(22:43):
pnumbra of specific Guarantees of the Bill of Rights. 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
(23:04):
we set up at the very top of the show,
substantive due process is the idea that the courts can
protect unenumerated rights, and in Griswold versus Connecticut. The court
was arguing that the rights of privacy was found in
the pannumbra, or the shadow of other rights that are mentioned.
The majority opinion referenced a series of previous cases in
(23:26):
which protected rights were interpreted as being broader than what
was spelled out in the Constitution. For example, in Mayer
versus 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 fourteenth Amendment, which says that
no state shall quote deprive any person of life, liberty,
(23:50):
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 fourt 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. The majority opinion in
(24:14):
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.
(24:37):
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. Having
been through all of that, the majority opinion read quote
the foregoing cases suggests that specific guarantees in the Bill
(24:58):
of Rights have pnumbers formed by emanations from those guarantees
to help give them life and substance. Various guarantees create
zones of privacy. The right of association contained in the
pannumbra of the First Amendment is one, as we have seen.
The Third Amendment, in its prohibition against the quartering of
(25:18):
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
(25:38):
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. Yeah, that
(25:59):
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 just 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. Quote. The present case then concerns
(26:21):
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. It went
(26:42):
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.
So all those various concuring opinions agreed with the idea
that the right to privacy could be inferred from some
(27:05):
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
descent read in part quote, I feel constrained to add
(27:25):
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. Justice Potter
Stewart wrote in his dissent quote, I think this is
an uncommonly silly law. As a practical matter, the law
(27:47):
is obviously unenforceable except in the oblique context of the
present case. It's a philosophical matter. I believe the use
of contraceptives in the relationship of marriage should be left
to personal and private choice. They 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
(28:09):
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 assinine. We are asked to hold that it
violates the United States Constitution, and that I cannot do.
The majority, though, had found that it violated the Constitution,
(28:31):
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
(28:53):
of access to contraception, but it was definitely incomplete. Number One,
it applied only of married couples. The focus was on
the idea that privacy was intrinsic to a married relationship,
so laws forbidding contraceptive use or counseling for single people
were unaffected. Number two, This idea that there were pnumbras
(29:15):
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. Beyond that, there were people,
particularly women's rights activists, who raised concerns about this ruling's focus.
(29:37):
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
(30:00):
in particular who thought that the court should have used
a different reasoning, like maybe one that interpreted the Fourteenth
Amendments equal protection and do 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
(30:20):
of people living at the time who were living outside
the gender binary in various ways. But really the focus
of the response of this in nineteen sixty five was
on women. During research for this episode, Tracy read a
paper in the American Historical Review suggested that this privacy
angle might have been influenced by the Wolfenden Report, which
was published in the u K in nineteen fifty seven.
(30:43):
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 decriminalis a sation of homosexuality.
In the words of that report, their quote must remain
(31:04):
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. As
(31:25):
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 nineteen sixty nine, the
Supreme Court sided Griswold be Connecticut, and its decision in
Stanley versus Georgia, which found that possession of obscene materials
was protected in part because of a right to privacy.
(31:47):
In ninety two, the Court struck down in Massachusetts law
banning the distribution of contraceptives two unmarried people. Although the
question before the court was whether this law violated the
privacy standard established in Griswold versus Connecticut, the Court found
that it violated the Fourteenth Amendment Due process clause. In
(32:08):
nineteen seventy three, the Court issued its decision in Row
versus Wade, finding the right to privacy established in Griswold
as being inherent in the due process clause of the
Fourteenth 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
(32:29):
to protecting a person's health and to quote, the potentiality
of human life. In nine six, the Supreme Court cited
Griswold versus Connecticut and its ruling in Bowers versus 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
(32:53):
was overturned in two thousand three in Lawrence versus Texas,
which was related to both the right to privacy and
to the due process clause of the Fourteenth Amendment, and
the Court once again issued a ruling that was partly
underpinned by Griswold versus Connecticut, and that was Oberga Fell
versus Hodges. This decision recognized same sex marriages as legal nationwide,
(33:17):
and it cited Griswold at several points, including the decisions
description of marriage as a right that's older than the
Bill of Rights. And most recently, the Court issued its
decision in Dobbs versus Jackson Women's Health Organization, overturning Roe v. Wade.
This decision also overturned Planned Parenthood v. Casey, in which
(33:37):
the Court had upheld Roe v. Wade and a constitutional
right to abortion. In 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 versus Connecticut, but in the Court's opinion, Roe versus
(33:58):
Wade was different from Griswold versus Connecticut because it did
not involve quote, the destruction of what Row called potential life.
So the majority opinion in this case noted the connection
to several cases we just mentioned. There was Griswald, there
was Eisenstat versus Bared, which is the one that overturned
(34:18):
the Massachusetts law barring contraception for unmarried people, and also
Oberger Fell, 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, and his concurring opinion,
Clarence Thomas wrote that future cases should reconsider rulings that
have relied on substantive due process, including Griswald, Lawrence, and
(34:42):
Oberger Fell. So that suggests otherwise, um, that is Griswold
versus Connecticut, which, as a side of 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 Row versus Wade. Do
(35:03):
you have some listener mail, I do I have. I
know there's a lot of things in this episode that
are tough for a lot of folks to think about.
So I chose a listener mail that is just about cats. Uh.
This is from Jan. Jan wrote, Hi, Holly and Tracy,
writing to tell you how much I love your Steff
fumus in History podcast. I appreciate all of your research
(35:23):
into things I've never heard of before. I always learn
a lot from you too, as well as Holly's podcast
Criminalio with Maria TREMARKI. Both are always excellent. I also
wanted to shamelessly pull out of old Tommy wallet with
photos and brag about my kittie. Her name is Princess
Peach a k A. Peach or Peachy, and she has
a weird habit. She steals single socks from either the
(35:45):
dirty clothes hampers or the clean sock bucket. I have
brought her and her sister Rosalina many toys, but when
we come home there's inevitably a number of single socks
she has picked up while we have been out, and
they're all sitting at the top of the stairs where
she waits for us. She likes to carry them around,
singing the song of her people. She either thinks their
prey or her babies. I can't decide, because sometimes she
(36:06):
does that model pose where she's half laying down and
half sitting, and she'll lounge like that with her sock.
Other times she likes to attack her sock, or drop
it from a high place and attack it. So the
weirdest thing about the socks, though, is the fact that
sometimes she likes to take them for a dip. Literally.
I cannot tell you how many times we have thrown
a sock away because we find she has dropped it
and then abandoned it into the toilet. She also likes
(36:30):
to dunk them in her water bowls. Sometimes I find
a soggy sock on the floor and I cringe, wondering
if it's toilet water or her drinking water, especially since
I have four young kids who sometimes don't flush. Here
are a few photos of Peachy. She has axema and
scratches her face to bits. She's on pills now and
sometimes she has to wear funny collars. Thanks for letting
(36:50):
me tell some strangers about my kitty, and thank you
for being so great about letting adults continue to learn
new things about history. It was always a favorite in school,
and your work as a bomb for me. Jan Um
and so uh Jan has lots of pictures of kitty cats. Um,
and they are all incredibly adorable. One includes one of
the kitties as a teeny teeny baby kitten sitting on
(37:13):
top of one of those toilet paper holders. Um. That's
like a little like almost a little cage for the
toilet paper roll to sit on its side. It's incredibly cute. Um.
One of the reasons that I wanted to read this episode,
besides just the part that it's just about kitties, is
that one of my cats, Opal also seems to have
(37:35):
a weird fixation with the toilet. Uh, not with sacks,
just with the toilet. What she will do is she
will chase you into the bathroom when you go to
use the bathroom, and then when we always put the
lid down so that the cats don't get into the water,
and she will jump onto the lid, and as you
try to flush the toilet, she will try to attack
(37:56):
your hand. And I don't understand what the processes here, um,
but if if she is prevented, like I sometimes will
just kind of hold her back a little bit because
I don't I don't want her to grab my hand
while I'm trying to flash the toilet. She will look
with a very betrayed expression and then try to try
(38:17):
to like grab your hand as you take it away
from the toilet handle. Um, I don't know what's up
with that kiddie behavior. But man, all of these Princess
Peach is cute. Yeah, all of these pictures are so cute.
And there's also a little video of like the trail
of socks um across the house. Uh So, anyway, thank
(38:38):
you so much Stan for all of these cat pictures
in this cat story, like it all brightened brightened my
day to read all of this. So if you would
like to uh send us a note about this or
any other podcast where History podcast that I hurt radio
dot com. We're also all over social media at missing History.
That's where I'll find our Facebook, Twitter, Interest, and Instagram.
(39:00):
And you can subscribe to our show on the I
heart Radio app or wherever you like to get your podcasts.
Stuff You Missed in History Class is a production of
I Heart Radio. For more podcasts from I Heart Radio,
visit the I heart Radio app, Apple Podcasts, or wherever
(39:20):
you listen to your favorite shows.
Stuff You Missed in History Class News
Hosts And Creators
Holly Frey
Tracy Wilson
Popular Podcasts
40s and Free Agents: NFL Draft Season
Daniel Jeremiah of Move the Sticks and Gregg Rosenthal of NFL Daily join forces to break down every team's needs this offseason.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
The Bobby Bones Show
Listen to 'The Bobby Bones Show' by downloading the daily full replay.