FB 106: An ‘Uncommonly Silly’ Law: How One Man’s Crusade Against Obscenity Resulted in Abortion Rights

The backlash to a 19th century chastity law ended up sparking a far more controversial new freedom for women.

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Episode Transcript

Speaker 1 (00:03):
We all need a break from the constant cycle to
learn something new, to gain new perspectives. The Great Courses
Plus streaming service is an excellent resource to expand our
knowledge on a variety of subjects or pick up a
new hobby. I've been enjoying the Great Courses Plus while
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of Baseball is America's pastime, History of the Supreme Court,

(00:26):
and Battlefield Europe have helped me connect the dots on
several stories from history. Right now, they're giving our listeners
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special U r L go to the Great Courses Plus
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(00:47):
Com slash o z y the Great Courses Plus dot
Com slash. Aussie March, the United States was in the
middle of a massive civil rights movement, but the U. S.
Supreme Court was hearing a challenge to a law that
was almost a century old. The case was called Griswold

(01:10):
versus Connecticut. It concerned a ban on the use of
all contraception in the state of Connecticut, even by married couples,
and the lawyers attempting to defend the law that made
it a crime to use birth control, Well, they had
their work cut out for them. During oral arguments, Supreme
Court Justice Potter Stewart grilled one of those lawyers about
the purpose of that contraception ban. Well, now, what purpose?

(01:35):
What is the police power? Purpose of Connecticut and telling
married people, two people who were married to each other,
that they could not use contraceptive The attorney responded that
the purpose was to preserve morality. What kind of morality? What? What? What?
What moral purposes? Well, it is not unheard of that

(01:57):
the use of contraceptives themselves would be immoral. Certainly. He
goes on from there, and the attorney kept digging himself
a bigger hole. It was a tough task. He was
trying to defend the somewhat archaic law with appeals to
contemporary morality. You see, by nine only two states, including Connecticut,
still outlawed contraception. Meanwhile, almost three quarters of the American

(02:20):
public approved of making birth control available. The Connecticut ban was,
as Justice Stewart himself put it, an uncommonly silly law.
So what's the problem? The U S Supreme Court had
no obvious way to do anything about it. There's nothing

(02:41):
in the U. S. Constitution that directly addresses contraception, reproductive health,
or family planning, so there's a less than solid legal
rationale to overturn the Connecticut law. However silly it might
have seemed, So what did the court do? They made
one up, and that instance of judicial creativity had has
affected the course of American law and politics for more

(03:03):
than half a century. Welcome to Flashback, a podcast from Azzie.
I'm Sean Braswell. This season of Flashback is all about
unintended consequences, and in this episode we explore the often

(03:24):
uneasy relationship between law and politics, between morality and a
changing society. We'll see how the efforts to overturn a
silly law led to an unexpected revolution, one that has
had its own unintended consequences today. The years following the
Civil War were a busy time in America, especially for

(03:45):
social reformers. This is John Johnson, an emeritus professor of
history from the University of Northern Iowa and the author
of Griswold v. Connecticut, Birth Control and the Constitutional Right
of Privacy. This was a very total period for reform
from about eighteen seventy to nineteen or so, and the

(04:07):
reform cut in many directions. Anti slavery reformers were looking
for new causes after the war to pour their energy into.
There was women's suffrage and voting rights prohibition, and within
this context you have what you might call the conservative
Comstock Laws. They were named after a prominent reformer named

(04:30):
Anthony Comstock, a veteran of the Union Army. And Anthony
Comstock was an interesting guy. He did not have an
elective position. He was sort of a an activist. Comstock
was a deeply religious man who had moved to New
York City after the war. He was outraged at the
vice he encountered, their saloons, flop houses, brothels. He also

(04:52):
didn't like the sending of what he considered immoral and
salacious material through the mail. This included pornography, obscene drawings
and more. And in this so called immoral literature he
included advocacy for birth control. Believe it or not, in
the eighteen seventies, contraception was a controversial matter in America.

(05:14):
It was religiously frowned upon, particularly in states like Connecticut,
with a strong and Catholic population. So Comstock quits his
job selling dry goods and convinces the New York Y
m c A to support his full time one man
crusade to bolster obscenity laws across the nation. He called
his new outfit the New York Society for the Suppression

(05:36):
of Vice, and it worked. Comstock convinced Congress to pass
the Comstock Act in eighteen seventy three. A number of
states passed their own Comstock laws restricting the use and
distribution of birth control. Anthony Comstock even convinced Congress to
appoint him as a Special Inspector of the Post Office

(05:58):
so that he could ferret out of scene material eels.
He conducted his own raids. The first year, he traveled
over twenty three thousand miles across the country and sees
over sixty tho condoms and diaphragms. He was the elliott
Ness of birth control. But not many Americans were as
enthusiastic about following the new law as Comstock was. The

(06:22):
laws themselves, which were the product of the culture, probably
didn't have a whole lot of deterred effect. Over the
next half century, most states repealed their Comstock laws. More
than sevent of Americans supported birth control, and only two states,
Connecticut and Massachusetts, still had the laws on the books.
In Connecticut, many attempts at repealing the state's Comstock law

(06:45):
were made, and I think there were over twenty attempts,
but the resistance, particularly of the Roman Catholic Church in Connecticut,
was determinative in keeping the laws on the books, and
they succeeded at least until the Church and almost a
century of legal and political inertia, met one very determined woman.

(07:10):
She was a very talented lady. She was a singer,
and for her early adulthood she spent time in France.
In nineteen fifty, the clerical worker and medical technologist named
to Stell Griswold moved to New Haven, Connecticut with her husband.
She was a small woman, vivacious, she described as feisty.

(07:34):
They had returned home to Connecticut because Griswold's mother was ill,
and by pure chance turned out that she and her
husband lived literally right next door to the Planned Parenthood
League of Connecticut, and the position of executive director happened
to be open. So the fifty year old Griswold applied,
but she didn't know anything. By her own testimony, she

(07:58):
didn't know much about birth country role. I don't think
she had even seen a diaphragm when she interviewed for
the job. Griswold got the job, and she immediately discovered
how challenging it would be. Connecticut's Comstock law was the
most restrictive in the country. It made using contraception at
crime and prohibited groups like Planned Parenthood from distributing it

(08:19):
or recommending it. This is Mary Ziggler, a law professor
at Florida State University and the author of the brand
new book Abortion and the Law of America. But Connecticut
was pretty much alone at the time in preventing married
couples from even using first controls. This was still the
nineteen fifties, before the birth control pill. The diaphragm was
the most commonly prescribed form of contraception at the time.

(08:42):
Some called it quote the rich woman's secret. The Connecticut
legislature would not repeal the law, and to get the
courts to address it required a lawsuit. The only problem
was the Connecticut law wasn't really being enforced, so to
get Griswold to the court required more than just a
law that still Griswold thought was unconstitutional. It also required

(09:03):
some kind of ingenuousness when it came to getting arrested
in trouble, showing that this law actually had some kind
of teeth. So in nineteen sixty one, Griswold and a colleague,
ductor Lee Buxton, decided they would try to test the law.
Griswold announced publicly that her clinic would start providing contraceptive
services to married women. This is a stell, Griswold in

(09:25):
a nineteen sixty two interview with CBS News, describing the situation, Well,
I think it's very evident that the allow is unenforceable.
I think if you had a policeman under every bed
in the state of Connecticut, they still could not prove anything.
John Johnson again, and so they began to advertise that
birth control was being practiced and advice was given in

(09:51):
the facility in New Haven, Connecticut. They literally called upon
the police to arrest a steal Griswold. A neighbor of
Griswold's named James Morris, filed the complaint. Morris was a
Catholic and the night manager at a rental car agency.
He told local prosecutors quote every moment that clinic stays open,

(10:14):
another child is not born. CBS News interviewed Morris in
nineteen sixty two as well against birth control because it's immoral.
It's the same as prostitution or abortion or in any
other than those I moral things. Of course, getting arrested
is just what is Stelle Griswold and Lee Buxton wanted arrest.

(10:36):
Warrants were issued and Griswold dressed in her Sunday best
surrender to authorities that the agreed upon time. So two
detectives showed up, and apparently Steal was very happy to
see them, and they had a very cordial conversation. Griswold
and Buxton were arrested, and a court found them guilty
and imposed a one fine. The case was appealed and

(10:57):
eventually went to the Connecticut Supreme Court and then the
United States Supreme Court. Chris Wald finally had her chance
to end the stubborn Connecticut law once and for all,
but her case would wind up doing so much more
than just that. That's next. Do you have an interesting

(11:25):
tale about unintended consequences from history or your own life,
Please share it with us By emailing flashback at Aussie
dot com. That's flashback at o Z e y dot com.

(11:47):
Not one of the nine men sitting on the U. S.
Supreme Court thought that Connecticut's ban was a sensible law.
John Johnson. This was considered sort of archaic and demeaning,
and it was crudely drawn, and it was ninety years old.
So it was a question of what grounds with the

(12:07):
Supreme Court find to rule the law and constitutional. Chief
Justice Earl Warren assigned the opinion in the case to
Justice William O. Douglas. The sixty six year old Douglass
was from Washington State and had been on the Court
for over a quarter century. He was a world traveler
and an outdoorsman. He was not your average Supreme Court justice. No.

(12:29):
For everybody's abridge guessing game, What My Mine? This was
a popular fifties game show. The contestants were blindfolded and
asked to guess the identity of a mystery celebrity guest.
One of those guests was Justice Douglas. This is a gentleman. Yes,

(12:50):
do you work? Do you work for profit making organization? No?
Justice Douglas was also something of a ladies man, sometimes
known as wild Bill. He was the first Supreme Court

(13:10):
justice to have been divorced, and not just once three times.
The year after the Griswold decision, he would marry his
fourth wife. She was twenty three years old. Needless to say,
many of the clerks on the Court felt it to
be deeply ironic that the justice with numerous extra marital
affairs was to be the one in Griswold given the
task of upholding the right to privacy in the sanctity

(13:32):
of the marital bedroom. Douglas wrote the first draft of
the Court's opinion in less than a week. It was
six pages, handwritten, double spaced on a yellow legal pad.
When his draft was circulated to the other chambers of
the Court, the clerks and other justices were shocked at
how thin it was. The legal argument left a little
to be desired as well. What Justice Douglas would ultimately

(13:56):
right is that the Connecticut law violated the right of
privacy of Stale Griswold. The Court had never explicitly found
a right to privacy in the Constitution. What Douglas did
was in some ways very creative, in other ways that

(14:16):
his critics said he was very sloppy, Douglas argued in
his opinion that the Connecticut law quote violates the right
of marital privacy, which is within the p number of
specific guarantees of the Bill of Rights, and these pannumbra
are these emanations sort of cast a privacy shadow. So
it is a really important case for a couple of reasons.

(14:40):
April Dawson is a constitutional law professor at North Carolina
Central University School of Law. One uh the court specifically
found a right to privacy and the marital relations and
concluded that the state could not restrict a married couple's
ability to be counseled on and use contraceptives. But more broadly,

(15:01):
it's important because the court for the first time really
explicitly found a right to privacy in the Constitution, even
though the right to privacy is not explicitly stated within
the text of the Constitution. The court delivered its opinion
to the public on June seven, the day before Estelle

(15:23):
Griswold's sixty five birthday. Near the end of the majority opinion,
the thrice divorced Douglas opined about the sanctity of marriage.
Marriage is a coming together for better or worse, hopefully
enduring an intimate to the degree of being sacred. It
is an association that promotes a way of life, not

(15:44):
causes a harmony in living, not political faiths. It is
an association for as noble a purpose as any involved
in our prior decisions. It was a beautiful sentiment, and
in the years after Griswold he would often hear that
passage read aloud at wedding ceremonies across the country, and

(16:04):
so for the first time in nearly a century, Connecticut
spouses engaged in legal protected sex, and the right to
privacy was born in America. Meanwhile, the Stelle Griswold did
what so many older Northerners did at the time. She
retired to an air conditioned home in Fort Myers, Florida,
where she lived until her death in But the controversy

(16:27):
surrounding the Griswold case began before the ink on the
opinion was even dry. The critics would say, well, it
may be very important, but it's not grounded in the U. S. Constitution,
And it was an easy decision to criticize if you
didn't like the analysis of Justice Douglas. For many, the

(16:47):
ends of eliminating an uncommonly silly law did not justify
the Warren Court's judicial means for doing so. If you
agreed with the Warren courts leanings, you were willing to
accept the decision. If you were critical of the Warrant
Court for going too far, you saw this as a
sloppy decision that created a right that it wasn't clearly there.

(17:11):
This is Daniel Ermine, a constitutional law scholar at the
Northeastern School of Law. Griswald is the beginning, but certainly
not the end, of a huge debate over whether unspoken
or what lawyers call unenumerated rights get protection in the Constitution.

(17:34):
No one knew right after Griswold quite what the consequences
of this broad legal right would be. Mary Ziggler again,
one of the questions coming out of Griswold was how
broad the s right to privacy reached? Pretty far, as
it turned out. Eight years after Griswold, the Supreme Court
announced another big decision, good evening and a landmark ruling.
The Supreme Court today legalized abortions. The majority and cases

(17:58):
from Texas and Georgia said that a decision to end
up pregnancy during the first three months belongs to the
woman and her doctor, not the government. Well, Roe versus
Wade is just a bomb that went off in terms
of constitutional law. This is Mark Kindy, the law professor
at Drake Law School and the director of the Drake
Constitutional Law Center. In the famous case of Roe v. Wade,

(18:20):
the U. S. Supreme Court found the right to privacy
identified in Griswold applied in other family planning circumstances, and
when it got to abortion, they found that although there
were certainly an interest the state had in the feat
is at the end of the day, that right to
privacy that an individual woman has with regard to what
happens to her body is something that exists. It's a

(18:40):
fundamental constitutional right. The decision in Row was immediately polarizing.
CBS News captured the opposing viewpoints on the day the
ruling was handed down. This is Dr Alan Gutmacher of
Planned Parenthood on that broadcast. I think that to raid
the dignity dear woman and give her freedom of choice

(19:02):
in this area his extraordinary event. And I think that
January nineteen seventy there would be an historic day. And
on the other side, James McK a priest with the U. S.
Catholic Conference. In this instance, the Supreme Court has withdrawn
protection for the human rights of unborn children, and it
is teaching people that abortion is a rather innocuous procedure,

(19:28):
provided that there are proper legal safeguards. These strongly held
opposing views on abortion have now defined American political culture
for nearly half a century, and the right to privacy
found in Griswold has been extended to areas beyond just abortion.
Mark Kendy, you know what happened after Rowe was basically

(19:48):
the Court actually continued to find this right to privacy
to be even broader. Some of these extensions to privacy
are favored by liberals, such as the Court's recent protection
of gay marriage, and some push in a more conservative direction. Certainly,
you know, parents claim rights to be able to do
things like homeschooling of their children. They claim rights to

(20:09):
be able to sometimes pull their children from public schools
when it comes to the point where public schools engage
in sex education. So it encompasses parental rights, it encompasses
medical care, and it even you know, touches on religious issues.
The century long reaction to the Comstock Laws of the

(20:30):
nineteenth century illustrates how legislative overreach can backfire to create
rights that would have shocked the original proponents of a law.
Just think, how would the Chase crusader Anthony Comstock have
felt if he knew his labors would have ultimately resulted
in legalized abortion? But can the same be said of
the Griswold case. Up next, a look at some of

(20:52):
the crazy, unexpected consequences unleashed by Griswald's privacy revolution. Enjoying
this episode, check out the Great Courses Plus streaming service.

(21:12):
It's an excellent resource to expand our knowledge on a
variety of subjects, like the establishment by the Supreme Court
of the right to privacy. In researching this episode of Flashback,
I dove deep into the lectures, history of the Supreme
Court and law school for everyone constitutional law. With the
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(21:58):
Com slash AUSI. These days, Griswold v. Connecticut is not
all that controversial, Mary Ziggler. But Griswold itself has become
what lawyers called part of the legal canon, in the
sense that you can't really say Griswold was wrong anymore.

(22:19):
But there's one place that Griswold and the still controversial
Roe v. Wade decision continue to get raised. Daniel Rman Again.
The debates that occurred in grizz Wald and Roe v.
Wade set the stage for an entire generation of Supreme
Court confirmation hearings, and few hearings went by without a

(22:41):
senator questioning the Supreme Court nominee about his or her
views on the right to privacy established in Griswold. It
really was the centerpiece of Robert Bork's confirmation hearing during
the summer of Robert Bork was an outspoken conservative jurist.
During the hearing, you can hear the subtle disdain he

(23:02):
had for Justice Douglas's opinion in gris Wald and Justice
Douglas entered ended that opinion with a rather uh eloquent
statement of how awful it would be to have the
police pounding into the marital bedroom. And it would be awful,
and it would never happen because there is a Fourth
Amendment and the police simply could not get into the

(23:23):
bedroom without a warrant. What magistrate is going to give
the police a warrant to go into search for signs
of use of contraceptives. I mean, it's a holy it's
a holy, bizarre and imaginary case. Now let me say this,
yeld at that point, just for classification, do you recognize
that second voice? Hint, it's a balding senator from the

(23:45):
state of Delaware who is currently the Democratic nominee for president.
And there's a famous exchange between the young chairman of
the Judiciary Committee, Joe Biden, and Robert Burke about the
implicate patitions of Burke's view that there is not a
fundamental right to marital privacy or the right to contraception.

(24:10):
That was that issue in Griswold. If they had evidence
of the crime was being committed, how are they going
to get evidence that a couple of tap, wire tap,
wire tap, you mean to say that is going to
authorize a wire tap to find out of a couple
of using contraceptives. They unbelievable, unbelievable. Things changed a bit

(24:34):
after the Senate refused to confirm Bork. After Bork was
voted down, You've just had a series of nominees by
both parties who have said Row v. Wade is precedent,
and they have given platitudes that would make most first
year law students blush. And that continues to this day.

(24:56):
I said that it's settled as a precedent of the
Supreme Court, entitled to respect under principles of starry decisives.
That's Brett Kavanagh, the last Supreme Court justice to be
confirmed in his Senate hearing. One of the important things
to keep in mind about Roe v. Wade is that
it has been reaffirmed many times over the past forty

(25:20):
five years. As you know, even if Supreme Court nominees
won't go near abortion or the right to privacy, it
has become a hot button political issue, especially on the right.
Mark Kindy, It's just extraordinary how influential it's been in
terms of energizing the Republican Party, for example, especially evangelicals

(25:41):
within the Republican Party. Daniel Irmin again Roe v. Wade
generated a politically powerful right to life movement that has
been with us since the nineteen seventies and has profoundly
affected national politics ever since. And it has impact did
the political sphere more than you would think. We know

(26:03):
that in two thousand eight, Roe v. Wade determined John
McCain's choice of a vice presidential nominee. He wanted to
choose Joe Lieberman as a unity ticket, and he got
the news that every state Republican party chair would boycott
the convention and not endorse him. He ended up picking

(26:25):
Sarah Palin, who was known for being against Roe v. Wade,
and we all know how that turned out. But it
was the steen US presidential election where the abortion and
right to privacy issue really had the biggest political impact.
In exit polls told us that about twent of voters

(26:46):
thought the Supreme Court was a very important factor in
their vote, and of those voters, it was about six
to four Trump versus Clinton. So if you do the
math and you remember that Trump won the electoral College
because of narrow victories in Wisconsin, Michigan, and Pennsylvania, I

(27:11):
think you can make a straightforward case that concern about
the Supreme Court and whether it would eventually overturn Roe v. Wade.
And the Trump presidency may have delivered his electoral college
victory and the Supreme Court will soon have an opportunity
to overturn or limit Roe v. Wade. April Dawson's So,

(27:31):
the Supreme Court is currently deciding a case right now
June Medical Services, the RUSSO, and this is a case
that's challenging a Louisiana law that requires physicians who perform
abortions to have admitting privileges at local hospitals. Mark Kindy,
there's a really good chance this court, which is considered

(27:54):
rather conservative, might say the Louisiana law that requires these
clinics to be like many hospital, well that's not a
big burden. But the problem is that law will probably
drive a bunch of these clinics out of business. And
so what's going to happen is it's going to be
much harder for women to be able to get abortions.
But if Roe v. Wade were to be overturned, there

(28:15):
is much more at stake than just abortion rights. In
order for Road to be overturned, the Court would pretty
much have to reach a conclusion that there is not
a right to privacy expressed within the Constitution, and that
would undermine all of the other decisions by the Court

(28:39):
that that are based on the right to privacy. This
could have huge legal implications for both sides of the
political aisle. Obviously, the pro choice side, which tends to
be liberal, would be upset. But one of the unintended
consequences is that it could infect rights that conservatives think
are very important. And so if you get rid of

(29:01):
this right to privacy as part of getting rid of
the right to abortion, ironically, you don't just burden potentially
people who support abortion, but you may burden people who
oppose abortion. But you may burden what you might call
conservative rights. So what are we to make of this
whole crazy legal back and forth from Comstock to Griswold

(29:24):
to the election and beyond Daniel Rman again, So big picture,
I actually like to quote Ruth Bader Ginsburg and she
says a lot of people think that the American symbol
is the eagle, but she actually prefers the pendulum, the
ideas that American law and politics tend to swing back
and forth. Sometimes that is in the form of a

(29:46):
backlash against a law passed by a legislature like the
Comstock laws. There is an incredible irony in that sometimes
laws with purpose a end up with outcome b and
a lot of the moral aims behind these Comstock laws
lead to women's liberation, especially in terms of sexual liberation.

(30:11):
And sometimes the pendulum swings back against the court system itself,
as it did in the years after Griswolden Rowe. Basically,
when courts step beyond their role, the political system tends
to react and respond, and there is a correction in
the long arc of history. And if the current Supreme

(30:32):
Court overturned rov Wade, we may see that pendulum swing
yet again. Down the Dube down, the doube down, down
the Dubi Downdubi downdu wa. Comstock Kane to build a
wall like the walls of Jericho, reaching two women across

(30:55):
the land is manifesto chy and to control what's going
on below the little did he know that the walls
will come tumbling down? Belou me down, but dude be
down by do wah Downadubi down, Badubi down bde wa.

(31:20):
When he laid his laws upon that bed a patchwork
they did. So it's so quilt those Golden Threads, The
Empress Sarreo her Trumpets, She did blow to com Socks,
Jerich Cole Fell Like Dominos and the Walls, King Tomblin Down,

(31:46):
Madubi Down, Bedue Be Down. Flashback is written and hosted
by me Sean Braswell, senior writer and executive producer at Ozzie.
He was produced by Robert Coulos, Tracy Moran, he Orio
to Gives You On, and Shannon Williams and Chris Hoff
engineered our show. Special thanks to the crew at I
Heart Radio Podcast Networks, especially Sophie Lichtman and Jack O'Brien.

(32:08):
Make sure to subscribe to Flashback on the I Heart
Radio app or listen wherever you get your podcasts. This
episode features the song Laws Come Tumbling Down, written and
performed by teacup Gin. You can check them out on
their website teacup gin dot com. Flashback is the latest
podcast from Ozzy, a modern media company producing original TV series, festivals,

(32:30):
news and podcasts for curious people. Ozzie's unique storytelling focuses
on the new and the next, whether that's forward looking
news and features bold new perspectives on TV or brand
new ways of looking at history in an earlier episode
of Flashback. This season, we learned how billions of cigarettes
were made available to American soldiers during World War One

(32:52):
and some of the unintended consequences of that. But there's
another item that, unlike cigarettes, soldiers were not allowed to
have condoms, and that decision had its own disastrous impact
on the war effort. It's estimated that eighteen thousand U
S soldiers per day were unable to serve because of
venereal diseases. In other words, at any given time, about

(33:14):
fIF of U S. Soldiers were basically off the front
lines and on medical furlough, not because of injury, but
because of the clap to dive deeper. Hand to AUSI
dot com slash flashback, that's o z y dot com
slash Flashback. There you can find more of my lecture
notes from today's episode, featuring extended interviews, links to further reading,

(33:37):
and more information on the unintended consequences of legal cases
like Chris Wald, as well as links to other hidden
stories from history uncovered by me and other reporters at Aussie.
We all need a break from the constant cycle to

(33:58):
learn something new, to gay new perspectives. The Great Courses
Plus streaming service is an excellent resource to expand our
knowledge on a variety of subjects or pick up a
new hobby. I've been enjoying the Great Courses Plus while
researching this season of flashback lectures like Playball, the Rise
of Baseball is America's Pastime, History of the Supreme Court,

(34:19):
and Battlefield Europe have helped me connect the dots on
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