Griswold v. Connecticut

12 Key excerpts on "Griswold v. Connecticut"

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  The Known Citizen

  A History of Privacy in Modern America

  • Sarah E. Igo(Author)
  • 2018(Publication Date)
  • Harvard University Press

    (Publisher)

  Citizens could not so easily evade the sense that the space for solitude and secrets in American society was shrinking. Had public opinion rather than the nine justices of the Supreme Court been in the driver’s seat it is entirely possible that the “right to privacy” would have arrived with a very different tenor. T h e K n o w n C i t i z e n 158 Viewed as an episode in the history of privacy—rather than the history of reproductive freedom or women’s rights— Griswold v. Connecticut thus offers a paradox. The Court’s historic ruling raising privacy to the status of a constitutional right resolved an issue that almost no one at the time as-sociated closely with privacy. Undoing a morals regulation that affected fewer Americans by the year, it addressed neither the actual harms of policing intimate life nor the deeply contested issues around individual privacy that by 1965 begged for attention. Still, Griswold and its fic-tional policeman partook in some ways from the privacy discourse that preceded and surrounded it. The ruling’s line in the sand, definitively cor-doning off the normative domestic sanctuary from the state, was a clear statement that there were tangible places and situations where privacy con-tinued to reign in modern society, where individuals’ lives would be sealed off from an insistently knowing society. Some citizens, at least, could be certain that the government would not interfere with sexual decisions or practices within the private home. That is, the ruling sketched the boundary between public and private in a way that seemed easy to defend and straightforward to regulate. More even than the assurance that marital intimacy would remain intact, the promise that there remained “zones of privacy” for retreat and repose in American society, places that the state did not reach and could not know, may have been Griswold ’s true public import in 1965.

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  American Constitutional Law 8E, 2-VOL SET

  2-VOLUME SET

  • Ralph A. Rossum(Author)
  • 0(Publication Date)
  • Routledge

    (Publisher)

  11

  The Right to Privacy

  DOI: 10.4324/9780429037191-23

  1. The Constitutional Basis
     1. Troxel v. Granville (2000)
  2. What the Right to Privacy Protects
     1. Griswold v. Connecticut (1965)
     2. Roe v. Wade (1973)
     3. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
     4. Gonzales v. Carhart (2007)
     5. Lawrence v. Texas (2003)
     6. In re Marriage Cases (2008)
     7. Defense of Marriage Act of 1996
  3. Qualifications on the Right to Privacy
  4. Privacy and the Right to Die
     1. Cruzan v. Director, Missouri Department of Health (1990)
     2. Washington v. Glucksberg (1997)
     3. Vacco v. Quill (1997)
  5. Notes
  6. Selected Reading
  7. Cases

  Any consideration of the right to privacy must begin with Louis D. Brandeis. In a pioneering exposition, Brandeis, then a young legal scholar, asserted in the 1890 Harvard Law Review that the right to privacy means fundamentally "the right to be let alone."1 The significance of this article, which he wrote with Samuel Warren, cannot be overstated; it generally is regarded as the most influential law review article ever published. Thirty-eight years later, as a justice of the Supreme Court, Brandeis expanded on the theme of the article in his dissent in Olmstead v. United States (1928): "The right to be let alone ... is the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustified intrusion of the government upon the privacy of the individual, whatever the means employed, must be deemed a constitutional violation." Another thirty-seven years would pass before Justice Brandeiss words were vindicated in Griswold v. Connecticut

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  Pursuing Privacy in Cold War America

  • Deborah Nelson(Author)
  • 2001(Publication Date)
  • Columbia University Press

    (Publisher)

  17

  We often forget that the sanctity of marital sexual conduct was far from an accepted feature of privacy rights in the early 1960s. Though the rapidly changing sexual mores of the twentieth century might predict that marital intimacy was not a very radical concept, the Griswold legal team had not only to define but also painstakingly defend it. The ninety-six-page brief submitted by the defendants took enormous care to establish with copious scientific documentation buttressed by the support of respected clergymen of different faiths that the sexual intimacy of married couples was: (a) valuable (it preserved marriage); (b) healthful (it contributed to the mental fitness of both partners); and (c) that to do without it constituted a grave deprivation of liberty (a lifetime of celibacy, which the state conceded as a possible outcome of upholding the Connecticut statute, had to be argued as a danger to the health and welfare of married individuals and to the institution of marriage itself).18 This is to say that there was nothing self-evident, natural, or given about the intimacy of the married couple, despite the decision’s claims to the contrary.

  Griswold hinged on the Court’s sympathy for the married couple, who, it should be remembered, were not implicated in the arrest (a clinic provider and doctor were arrested). Connecticut’s prosecutors summarily dismissed claims for a general right to sexual intimacy. State attorney Joe Clarke stated in oral argument, “that single people should be allowed to use a contraceptive device is so contra to American experience, thought, and family law that it does not merit further discussion” (Garrow, Liberty and Sexuality 243)19 and the Court, in obvious agreement, pressed him no further. Everywhere this “new” right to privacy was defended—and the briefs and arguments acknowledged it to be new—we find the words “sanctity” and “marital intimacy.” The legal argument as well as the media discussion surrounding the case stressed the marital “core” of privacy. For example, Griswold attorney and Yale Law professor Fowler Harper argued in a CBS Reports interview: “One of the most intimate and sacred relations of life is the relation of a man and his wife in the privacy of their home. And when the long arm of the law reaches into the bedroom and prohibits a man and his wife doing what they want to do, and what medical advice suggests that they do, it seems to me that this is a merciless invasion of the freedom and liberty of the citizens of this country” (Liberty and Sexuality

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  Constitutional Revolutions

  Pragmatism and the Role of Judicial Review in American Constitutionalism

  • Robert Justin Lipkin(Author)
  • 2000(Publication Date)
  • Duke University Press Books

    (Publisher)

  Without this generalized justification for owning certain artifacts, the specific protections have no justificatory force. Similarly, the argument for privacy in Griswold is that specific privacy protections in the Bill of Rights require a general right to privacy for their justification. Consequently, this generalized right is as much a part of the The Historical Defense of the Theory 195 Constitution as the specific provisions concerning privacy. This argument is a good one. Specific examples of privacy are meaningless without invoking a general principle to provide the context and to determine what is attrac-tive about a range of privacy activities. The standard response is that consti-tutionally we need no general justification of privacy to justify specific pri-vacy provisions; we merely need normal conventions to justify them. After all, we are engaged in constitutional, not moral, reasoning. Although a defender of Griswold might defend the decision in di√erent ways, my purpose here is not to continue this argument, but rather to indicate that the controversy itself suggests that Griswold was revolution-arily decided. ∞πΩ For our purposes Griswold ’s importance lies in providing an excellent example of both revolutionary and postrevolutionary adjudica-tion. The revolutionary decision in Griswold determines the scope of the general right to privacy. The period following Griswold illustrates postrevo-lutionary activity in all its splendor. Subsequent cases extended privacy in marriage to privacy more generally, including to the postrevolutionary abortion decisions. ∞∫≠ During this period courts attempted to determine whether and to what extent other constitutional problems—for example, contraception among unmarried couples, family living arrangements, pa-rental rights, the right to marry, personal appearance, the right to die, and so forth—should be solved according to the paradigm in Griswold.

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  The Gay Rights Question in Contemporary American Law

  • Andrew Koppelman(Author)
  • 2010(Publication Date)
  • University of Chicago Press

    (Publisher)

  The sodomy statutes brand all gays as criminals and so legitimize discrimination against them. 8 These stat-utes’ centrality has been reinforced by the Hardwick decision, which focused solely on the privacy issue and which has been most students’ introduction to issues of gay rights in the law. Privacy, however, is a weak basis for gay rights claims. It has no textual basis. It cannot be deduced from earlier privacy decisions. It inappropriately requires judges to decide what is important in life. It excessively disables the state from legislating on the basis of morality. Moreover, privacy is a poor characterization of what is at stake in the 35 gay rights debate, which turns primarily on public status rather than private conduct. The argument has great rhetorical power, of course and has produced notable successes in litigation. It would be foolish for advocates not to deploy it. But its weaknesses suggest that even ad-vocates should not place too many of their eggs in this basket. And courts can always rely on better arguments. THE BASIS OF PRIVACY RIGHTS The germinal privacy case is Griswold v. Connecticut, 9 which invali-dated a Connecticut statute that prohibited the use of contraceptives. Justice Douglas’s opinion for the Court holds that the statute violated the constitutional right to privacy, which is not enumerated in the text but which, Douglas argued, could nonetheless be derived from the text. The logic of Douglas’s derivation was as follows. (1) “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emana-tions from those guarantees that help give them life and substance.” 10 (2) “Various guarantees create zones of privacy. The right of associa-tion contained in the penumbra of the First Amendment is one . . . . The Third Amendment in its prohibition against the quartering of sol-diers .

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  America's Prophets

  How Judicial Activism Makes America Great

  • David R. Dow(Author)
  • 2009(Publication Date)
  • Praeger

    (Publisher)

  His objective in Griswold was to make sense of this, to show how it was possible that the Court had erred when it decided the Lochner case, yet had decided correctly when the justices identified certain other rights not explicitly mentioned in the Consti- tution. It was at this point in his analysis that the idea of intimacy began to do the heavy lifting. Griswold v. Connecticut AND THE RISE OF JUDICIAL PROPHECY 47 Justice Douglas’s analysis in Griswold contained a radical insight that was entirely without precedent in American constitutional law. He visualized the relationship between human beings, on the one hand, and the government (or the state), on the other, in three dimensions. Up until Griswold, the Court addressed questions of individual rights and government power in two dimen- sions. It was as if there was a line down the middle of a piece of paper, and one side contained the things that government could do, while the other identified the things it could not do. The major factor that dictated where the line was drawn was what kind of relationship the government was seeking to control. So, for example, it could regulate the relationship between a vendor and a consumer, but not between a husband and wife; it could regulate a rela- tionship between employer and employee, but not between parent and child. Douglas began with this established wisdom. There are different types of relationships among human beings—business, economic, social, and marital— and the type of relationship involved dictates the amount of permissible gov- ernmental regulation. But to Justice Douglas, this typology could not explain many decisions that were manifestly correct. For example, as early as the mid- nineteenth century, the Court had held that Americans enjoy a right to travel from one place to another, despite the fact that no such right is expressly protected.

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  Liberty and Sexuality

  The Right to Privacy and the Making of Roe v. Wade

  • David J. Garrow(Author)
  • 2015(Publication Date)
  • Open Road Media

    (Publisher)

  In the future, he said, it was quite possible that the novel usage that Griswold made of the Ninth Amendment “might be utilized to expand the concept of privacy, or, perhaps, to guarantee other basic rights. It would hardly be surprising, however, if this development were some decades away.” Noting how all of the affirmative opinions had placed significant rhetorical emphasis upon the importance of marital privacy, Tom pointed out that “It is conceivable that in future cases the Court will limit the doctrine to the marriage relationship.” However, he emphasized, “such an outcome seems unlikely, since constitutional doctrines have a way of expanding beyond the boundaries of the original case.” “It is conceivable,” he remarked, “that sometime in the future, as mores change … all sexual activities of two consenting adults will be brought within the right of privacy.” Additionally, if Griswold ’s privacy doctrine did develop expansively, it was also possible, Tom said, perhaps hearkening back to Lee and Helen Buxton’s earlier comments, that “the way would be open for an attack upon significant aspects of the abortion laws.” 82 The constitutional right to privacy created by the Supreme Court in Griswold, as Tom Emerson’s doctrinal comments clearly reflected, was not without suggestive precursors. Thomas Cooley’s 1888 coining of the “right to be let alone” was among the best known, but even “the right to privacy” itself, although in a very different legal application than that of Griswold, had already been quietly present on the American legal scene for three quarters of a century. Less than two years after Cooley’s treatise appeared, a well-known journalist writing in Scribner’s Magazine, E. L. Godkin, first spoke of “the right to privacy” in the context of criticizing personally salacious and intrusive newspaper reporting. Five months later two young Boston lawyers, Samuel D. Warren and Louis D

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  Constitutional Self-Government

  • Christopher L. Eisgruber, Christopher L. EISGRUBER(Authors)
  • 2009(Publication Date)
  • Harvard University Press

    (Publisher)

  This argu-ment renders Roe and Casey analogous to the Court’s other cases about sexual freedom. In Griswold, Eisenstadt, and Bowers, the state tried to claim that when people engaged in a certain kind of sexual relationship, they forfeited their general right to be free from incarceration. Like-wise, on the argument we are now considering, women have a right to decide whether or not to continue a pregnancy, but they cannot insist upon that right if the pregnancy is the consequence of their own hedo-nistic behavior. Is that position untenable? If so, why? Is there a consti-tutional principle that protects the right to engage in non-procreative sexual intercourse? If such a principle exists, the justification for it must lie outside “the right of an individual, married or single, to be free from 152 Constitutional Self-Government unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.” The justices who wrote for the Court in Griswold, Eisenstadt, Carey, Roe, and Casey never acknowledged that these cases were in any way about sexual freedom—the Court’s rhetoric is all about tradition, mar-riage, and reproductive autonomy. Indeed, there is great irony in the way that tradition has threaded through the Supreme Court’s cases about sex. In Griswold, the justices avoided discussing the constitutional status of sexual conduct by emphasizing that the case dealt with mar-riage. “We deal here with a right of privacy older than the Bill of Rights,” wrote Justice Douglas for the Court. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” 50 In Eisenstadt, which dealt with sexual re-lations between unmarried persons, the Court avoided talking about sex and instead cited Griswold. Yet, insofar as Griswold relied on the tra-ditional respect accorded the marriage relationship, it is not clear that Griswold supports the right claimed in Eisenstadt.

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  The Supreme Court and American Democracy

  Case Studies on Judicial Review and Public Policy

  • Earl Pollock(Author)
  • 2008(Publication Date)
  • Greenwood

    (Publisher)

  438 (1972). Although none of the opinions in the case received the support of a majority, the Court (6-1, Powell and Rehnquist not participating because they had not been on the Court when the case was argued) held that the Equal Protection Clause was violated by a Massachusetts statute prohibiting the distribution of contraceptives to unmarried per- sons. Justice Brennan, in an opinion joined by three other Justices, stated: It is true that in Griswold the right of privacy in question inhered in the marital relation- ship. Yet . . . [i]f the right of privacy means anything, it is the right of the individual, mar- ried or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 128 The Supreme Court and American Democracy 3 Garrow, ibid., at 473–491, describes in detail the Court’s lengthy deliberations in seeking to arrive at a decision in Vuitch. The other two Justices in the majority declined to reach that issue and instead con- curred on the ground that the record did not support the State’s classification of a par- ticular contraceptive as dangerous to health. 4 The abortion cases were reargued on October 11, 1972, and decided on January 22, 1973. Treating neither the bedroom nor the marriage relation as controlling, the Court extended the “right of privacy” concept to abortion. In Roe v. Wade, the next-digested case, the Court declared that, “This right of pri- vacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” And, relying on the substantive due process doctrine that Justice Douglas had spurned in Griswold, the Court categorized abortion as a “fundamental” right because of “[t]he detriment that the State would impose upon the pregnant woman.” Roe v.

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  Freedom and Time

  A Theory of Constitutional Self-Government

  • Jed Rubenfeld(Author)
  • 2008(Publication Date)
  • Yale University Press

    (Publisher)

  221 Twelve THE RIGHT OF PRIVACY The last two chapters dealt with interpreting a written constitution. A differ-ent question concerns unwritten constitutional rights. Such rights are well es-tablished in American law. The most prominent example is the subject of this chapter: the “right of privacy.” Roe v. Wade 1 is the most famous of privacy cases, but the reach of this unwritten right is not limited to abortion. American courts also consider the right of privacy to protect, among other things, contraception, 2 marriage, 3 interracial marriage, 4 divorce, 5 the refusal of life-sustaining medical treat-ment, 6 and the right to send a child to private school. 7 But there is no ac-cepted constitutional definition of privacy, nor even an authoritative articu-lation of the principle for which these cases stand. This is hardly surprising, given the notorious porousness of the public-private boundary and the em-barrassments suffered by virtually every effort to police this boundary. Privacy in American constitutional law is perpetually in search of an explanation of itself. Nevertheless, a certain aspiration is evident often enough in the privacy cases and the surrounding literature. The right of privacy seeks to name a space in which individuals would be free from law. For consenting adults, nothing would be required or forbidden in this space, this domain of “private 1. 410 U.S. 113 (1973). 2. See Griswold v. Connecticut, 381 U.S. 479 (1965). 3. See Zablocki v. Redhail, 434 U.S. 374 (1978). 4. See Loving v. Virginia, 388 U.S. 1 (1967). 5. See Boddie v. Connecticut, 401 U.S. 371 (1971). 6. See, e.g., In re Guardianship of Estelle M. Browning, 568 So. 2d 4, 11 (Fla. 1990); cf. Cruzan v. Director, Missouri Dep’t of Health, 457 U.S. 261, 279 (1990). 7. See Pierce v. Society of Sisters, 268 U.S. 510 (1925). Pierce was decided well before the contemporary “right of privacy” had been articulated, but the case is now au-thoritatively regarded as a privacy decision.

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  Major Principles of Media Law

  2019 Edition

  • Wayne Overbeck, Genelle Belmas(Authors)
  • 2018(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  A couple’s decision to use contraceptives was a private matter and none of the state’s busi-ness, Douglas claimed. Thus, the Connecticut law banning the use of contraceptives (even by married couples) was ruled unconstitutional. Abortion law. The right to have an abortion is rooted in the constitutional right to priva-cy. In the landmark 1973 decision overturning state laws against abortions ( Roe v. Wade, 410 U.S. 113), the Supreme Court focused on concepts related to personal privacy in reaching the decision that abortions were a private matter between a woman and her physician, at least during the early months of pregnancy. In the years since 1973, Roe has become the most controversial Supreme Court decision of the twentieth century. Millions of Ameri-cans vehemently disagree with the ruling that a state cannot prohibit abortions during the first six months of pregnancy when the fetus is not viable outside the womb. Millions of others strongly support the court’s holding that there is a right of privacy in this area. It was inevitable that the Supreme Court would have to revisit the abortion question again and again. The Court has upheld the basic Roe frameworks in several controversial opinions since 1973, including the 1992 decision Planned Parenthood v. Casey and the 2016 decision in Whole Woman’s Health v. Hellerstedt . In 1992, many on both sides of the abortion controversy expected the Supreme Court to overturn Roe v. Wade . Two liberal justices who were strong supporters of Roe v. Wade (William Brennan and Thurgood Marshall) had been replaced by more conservative justices (David Souter and Clarence Thomas). But to almost everyone’s astonishment, a new coalition of moderate conservatives led the Court in a 5-4 vote to reaffirm the basic holding of Roe in Planned Parenthood of SE Pennsylvania v.

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  Transforming Privacy

  A Transpersonal Philosophy of Rights

  • Stefano Scoglio(Author)
  • 1998(Publication Date)
  • Praeger

    (Publisher)

  . . [and] it ignores the choice of a fundamentally different form of government that was made for our nation two centuries ago: ‘The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy.’ ’’ 21 But some have simply denied that the right at stake in Roe was truly funda- mental. J. Ely, for example, claims that no right to privacy was really involved in Roe, because the Court merely established a constitutionally unsupported right to abortion. 22 Helen Garfield has rightly written that when the right to privacy is fragmented in this way, it becomes possible to attack any segment of the right as judicial legislation. . . . The distinction between the right to abortion and the right to make the abortion decision is crucial to the definition and scope of the right. A right to abortion would protect the pregnant woman only if she decided to have an abortion. Protecting the decision protects also her right not to have an abortion. 23 158 Transforming Privacy This means that the right at stake in Roe does not protect abortion as a value but rather the woman’s freedom from constraints and necessities, including the freedom not to be forced to have an abortion by the circumstances. In this sense, the ultimate goal of the right to privacy in the abortion context is to reduce the painful and harmful necessity of abortions, thus allowing the woman to take into full account the interest of her critical others: the fetus, the family, the community. This brings us back to Blackmun’s nonatomistic premises. He wrote that the ‘‘pregnant woman cannot be isolated in her privacy,’’ the abortion situation being ‘‘inherently different’’ from other forms of familial privacy in that it involves the collective interest to the life of the fetus and to the health of the mother.

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