Griswold v. Connecticut – New Opposition to a Landmark Case Settled 57 Years Ago
It has been 57 years since the court handed down its landmark ruling in Griswold v. Connecticut. Colloquially known as the birth control case, Griswold codified the right of married persons to make reproductive decisions free from governmental intrusion and fundamentally redefined the boundaries of the marital relationship by localizing reproductive decisions within the constitutionally protected realm of privacy.
Over the next twelve years the court revisited the question of reproductive autonomy and expanded their initial ruling to extend the same rights to both single persons (Eisenstadt v. Baird, 1972) and minors (Carey v. Population Services International, 1977). With each successive decision, the court eroded barriers to contraceptive access and acknowledged the importance of reproductive autonomy to the self-direction of one’s reproductive life.
Despite these momentous victories, contraception continues to be a cite of legal contestation. After almost 40 years of silence on the subject the US Supreme Court has weighed in on the question of contraceptive access four times since 2014. Most recently, the case has found itself the subject of scrutiny from critics who point to the decision as an unacceptable moment of judicial activism suggesting the court’s opinion erodes the very fabric of our federalist system.
Was Griswold truly the activist overreach opponents claim it to be?
Sounding the Alarm on Judicial Activism
In a video statement released in advance of the confirmation hearings for Judge Ketanji Brown Jackson, GOP Senator Marsha Blackburn took aim at several landmark cases including Griswold proclaiming: “Constitutionally unsound rulings like Griswold v. Connecticut, Kelo v. City of New London, and NFIB v. Sebelius confuse Tennesseans and leave Congress wondering who gave the court permission to bypass our system of checks and balances.” These cases bear little resemblance to one another dealing with far-flung issues of contraception, eminent domain, and the Affordable Care Act; but for Blackburn, a self-proclaimed constitutionalist, they represent intolerable instances of judicial activism moments where the court used their interpretive power to carve out protections not clearly enumerated in the constitution.
Fellow GOP Senator Mike Braun echoed Blackburn’s concern with judicial activism taking aim not only at Griswold but Roe v. Wade and Loving v. Virginia arguing: these “issue[s] should have never been federalized” because “we’re better off having states manifest their points of view rather than homogenizing it across the county.” In reality, Braun’s appeal to state’s rights is nothing more than a clever slight of hand giving him cover to attack the court’s decisions without wading into the quicksand of the issues themselves. The appeal to state’s rights seems even more quizzical in the context of Griswold, Roe, and Loving which all retained the validity of states as regulatory agencies with the ability to impede the right to privacy in service of a legitimate state interest so long as the impediment did not create an undue burden on the individual’s ability to enact their rights.
These refrains even found their way into a recent debate among the Republican candidates for Attorney General in the state of Michigan. When asked: “How do you each stand on Griswold v. Connecticut?” Former Speaker of the Michigan House of Representatives Tom Leonard said it “was wrongly decided because it was an issue that trampled state’s rights.” State Representative Ryan Berman, although initially unfamiliar with the case used his phone during the debate to concoct his reply insisting: “I’m all about states’ rights and limiting federal judicial activism.”
Although legal scholars and Supreme Court Justices alike (notably Justices Thomas and Alito), have long rebuked the court for what it considers an activist interpretation in Griswold, this new line of attack is part of a larger agenda aimed at vacating myriad landmark rulings under the banner of judicial originalism. Dr. Eugene McCarthy, Assistant Professor of Business law at James Madison University, provides vital context on this trend and its possible implications for not only Griswold but the numerous cases utilizing its findings as precedent. McCarthy argues:
“Originalists say that the Constitution’s textual silence regarding privacy is prima facie evidence that the right to privacy is not a constitutional right but instead the byproduct of liberal judicial activism. To judicial originalists, Douglas’s Griswold opinion is playing “charades with the Constitution.”9 Even constitutional scholars who are ideologically sympathetic to the right to privacy have dismissed Griswold as “difficult to take seriously.”10 Recent events have brought increased scrutiny on both Griswold and the right to privacy. President Trump has vowed to nominate as many judicial originalists as possible to an aging Supreme Court in order to “repeal” Roe v. Wade—a decision that rests on the right to privacy as established in Griswold.11 If, as originalist judges claim, Douglas invented the right to privacy, the other civil liberties that rest upon it are in a legally precarious position. If, instead, Douglas correctly identified that the Constitution contemplates and protects the right to privacy, then the only way to revoke this right would be to amend the Constitution or engage in judicial activism, the underlying behavior for which judicial originalists have consistently attacked and derided Griswold.”
Originalism v. Activism – Its All a Matter of Interpretation
Beyond mere arbiters of the law, the Court is expected to provide a rationale for its decision that effectually supplements our understanding of the law and our place in it as citizens. While their verdict demarcates legality, their written decision sketches the new boundaries of the law. Who sits on the Supreme Court is not just a matter of the verdicts they’ll render but, perhaps more importantly, their written rationales for doing so. Justice Ruth Bader Ginsburg was rightfully lauded as a progressive justice not because of how she voted but because of her skillful application of feminist jurisprudence. And on the other side of the aisle, Justice Antonin Scalia was routinely praised for his strict adherence to a philosophy of originalism.
Given the current climate then it is wholly unsurprising that each of the Justices seeking nomination to the court have been explicitly asked about Griswold. During his confirmation trial in 2017, Neil Gorsuch acknowledged that Griswold has “been settled for 50 years,” but refused to comment on his personal views regarding the cases. Amy Coney Barrett, confirmed in 2020, took a similar stance recognizing the long-standing precedent set by these cases while carefully adding “it’s something that I can’t opine on, particularly because it does lie at the base of substantive due process doctrine, which is something that continues to be litigated in courts today.” Brett Kavanaugh, appointed to the court in 2018, offered the most brazen take – praising Justice White’s concurring opinion in the case which actually had little to do with contraception. David Gans explains the move as a “high-pitched dog-whistle aimed” at conservatives given Justice Whites notable dissent in Roe v. Wade and majority opinion in Bowers v. Hardwick. It’s no small coincidence that while serving on the DC Circuit Court of Appeals in 2015, Kavanaugh sided with the organization Priests for Life in their opposition to the contraceptive mandate. This case just so happened to be one of the seven cases consolidated into the Little Sisters of the Poor hearing where Kavanaugh would again side in favor of granting all religiously based exemptions to the contraceptive mandate. When facing a similar line of questioning in her confirmation hearing, Judge Ketanji Brown Jackson insisted the court’s previous decisions have created a “binding precedent” no different than “any other precedent” set by the court. When pressed by Senator John Kennedy about her personal belief on when life begins Jackson insisted, “I have a religious belief that I set aside when I am ruling on cases.” If these tepid answers are any indication Griswold and the litany of cases who rely on it for precedent may be in danger.
If Griswold is to remain a subject of critique, then it behooves us to understand precisely what the court actually said in its opinion. Given the scorn with which Blackburn and her colleagues refer to the decision its limited scope may surprise you…and them.
Privacy and reproductive choice under Griswold
In the majority opinion for the court Justice William Douglas explains, “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.” In the eyes of the court, married couples had the right to utilize contraception in consultation with their physicians because the marital bedroom “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” Questioning the enforcement for such a policy, Douglas scoffs: “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.” As such, laws banning contraception prevented married couples from freely making private decisions representing a threat to the traditional marital relationship.
The right to privacy articulated in Griswold admittedly lacked precision as the Justices worked through decades of jurisprudence to carve out a right not actually enumerated in the constitution. As the court expanded their interpretation of who qualified for this right, they simultaneously refined the right itself to provide a more precise definition of privacy generally and reproductive autonomy more specifically. The court most clearly articulates its interpretation of the right to contraception in Carey. Justice Brennan, delivering the majority opinion for the court explains: “Although ‘[t]he Constitution does not explicitly mention any right of privacy,’ the court has recognized that one aspect of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment is ‘a right of personal privacy, or a guarantee of certain areas or zones of privacy’” which includes "independence in making certain kinds of important decisions." The types of decisions protected by the court’s doctrine of privacy include marriage, procreation, contraception, family relations, and child rearing and education. Brennan furthers, “The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices….This is understandable, for in a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive.” Whereas Griswold identified the marital bedroom as a zone of privacy free from governmental intrusion and Eisenstadt merely redefined the marital union as a composite of two individuals thus nullifying the marriage requirement, Carey specified the actual decisions of individuals as the constitutionally protected act.
Privacy has its Limits and the State still has Power
Even the rights expressly enumerated in the Constitution have limits the nature of which are carefully negotiated by the courts as cases arise testing the scope of those limits. The decisions proffered by the court seek to articulate the extent to which a person’s right must be protected. In the case of reproductive autonomy, this does not mean states cannot impose regulations on contraception but must simply do so without “having a maximum destructive impact upon a protected relationship.” At the time of court’s decision in Griswold (1965), contraceptive options were far more limited than they are today. Aside from traditional barrier methods, women had their choice of either hormonal contraceptive pills or rudimentary versions of today’s IUD. Accordingly, while the Griswold decision speaks very little to specific contraceptive methods, it does establish a framework for states wishing to regulate contraceptive services.
Justice Douglas, writing for the majority, grants states the right to regulate the sale and distribution of products intended for general consumption so long as their efforts do not “sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Taking great care to acknowledge the state’s role as a regulatory agency charged with protecting public health, Douglas invalidates the Connecticut law because in prohibiting rather than regulating contraception, the state overstepped its bounds. Justices Goldberg and Brennan echo this sentiment in their concurring opinion noting, “where fundamental liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose.” Ultimately, the court’s ruling requires states provide a compelling justification in order to violate a right as fundamental as reproductive autonomy.
Cognizant of the precedent set by the court invalidating numerous state laws, Brennan carves out space in Carey to reassure states that their interest in regulating contraceptive access remains vaild. He writes, “That the constitutionally protected right of privacy extends to an individual's liberty to make choices regarding contraception does not, however, automatically invalidate every state regulation in this area….even a burdensome regulation may be validated by a sufficiently compelling state interest…[because] the right is not absolute…‘Compelling’ is of course the key word, where a decision as fundamental as that whether to bear or beget a child is involved.” The court’s conclusion regarding the regulation of contraception contains two key elements. First, any regulation must stem from a legitimate state interest; second, such a regulation is permissible so long as it does not restrict contraceptive access to the point where the right becomes impossible to exercise.
In the eyes of the court, as long as women are not completely prohibited from accessing contraceptives, the government has no obligation to ensure contraceptives are genuinely accessible. In this context, reproductive choice is never an absolute right ensuring unfettered access to contraceptives; rather, it is a conditional right made available within a regulatory system suited to uphold state interests.