Despite the fact that they were written in the late 19th century, morality laws were still on the books in the United States in 1965. In Connecticut, one such law prohibited the discussion, prescription and distribution of contraception. After years of trying to get the courts to scrub this law from the books, medical providers had to find a way to get the question before the highest court in the land. It wouldn’t be easy, but in the end the case would transform our notion of privacy and the role of the Supreme Court when it comes to public law.
Renee Cramer of Drake University and Elizabeth Lane of Louisiana State are our guides.
Transcript:
Hannah McCarthy: [00:00:03] A quick heads up, we're about to talk about a Supreme Court case that acknowledges the existence of sex, reproduction and birth control. Nothing too detailed. But if you've got young ears around you, you might consider skipping this one. Alright. Here we go.
Archival: [00:00:17] Conversation at the dinner table is very important and there are many topics that you cannot speak about, so we'll talk about those first.
Hannah McCarthy: [00:00:25] There are several basic rules of thumb when it comes to good table manners. Be nice about the food, elbows off the table and avoid the following subjects.
Archival: [00:00:38] I recommend that you do not talk about politics, religion, death, bereavement or anything that's too spicy.
Hannah McCarthy: [00:00:46] I found a whole series of etiquette lessons online and now I am finally a lady. But I digress. You'll notice that the last of the forbidden realms was so taboo that it could only be hinted at anything [00:01:00] spicy.
Nick Capodice: [00:01:00] May I hazard a guess.
Hannah McCarthy: [00:01:02] Please.
Nick Capodice: [00:01:03] Because I'm thinking she doesn't mean chili pepper.
Hannah McCarthy: [00:01:05] Right.
Nick Capodice: [00:01:06] I'd say that anything having to do with sex at all is a big no.
Hannah McCarthy: [00:01:09] I'd say you're right. And anything having to do with the politics of sex may be an even bigger now. But I'll tell you where we do talk about it in these United States, the Supreme Court. This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:01:28] I'm Nick Capodice.
Hannah McCarthy: [00:01:30] And today we're covering a case that decided what we're legally allowed to talk about and do when it comes to a certain spicy subject. The year is 1965 and the case is Griswold v. Connecticut. This case paved the way for reproductive privacy in the United States. It's the reason that you're allowed to talk about birth control, let alone buy and use it. This is the case that kicked the federal government out of our bedrooms. Now, [00:02:00] 1965 in the United States, we're talking major clashes and major change, the president is Lyndon B. Johnson, beginning his first full term after the assassination of John F. Kennedy.
Archival: [00:02:15] Lyndon Baines Johnson: I speak tonight for the dignity of man and the destiny of democracy.
Hannah McCarthy: [00:02:21] The Vietnam War is raging as are anti-war protests. This is the year Malcolm X is assassinated.
Archival: [00:02:32] be prepared to defend ourselves or we will continue to be a defenseless people at the mercy of a ruthless and violent racist mob.
Hannah McCarthy: [00:02:40] The year 200 Alabama state troopers attacked unarmed, peaceful civil rights marchers in our own.
Hannah McCarthy: [00:02:48] The year of the 1965 Voting Rights Act, we are in the midst of the Cold War, the space race...
Archival: [00:02:57] Until two days ago, that sound [00:03:00] had never been heard on this earth.
Hannah McCarthy: [00:03:01] And in the midst of all of this is a woman who's trying to get in trouble with the law.
Archival: [00:03:06] The effort to change morality laws by breaking them is still going on. The latest case in the state of Connecticut.
Estelle Griswold: [00:03:18] We are continuing maybe illegally, but we are continuing our program of education and referral.
Hannah McCarthy: [00:03:24] Estelle Griswold, executive director of the New Haven, Connecticut, Planned Parenthood Clinic.
Estelle Griswold: [00:03:29] An old Comstock law making it a crime to practice contraception, is still on the books.
Hannah McCarthy: [00:03:33] See Estelle, along with a doctor from Yale.
Archival: [00:03:36] Dr. C. Lee Buxton, chairman of the obstetrical department.
Hannah McCarthy: [00:03:39] They wanted to challenge a law and to do it, they needed to get arrested.
Archival: [00:03:44] We issued to warrants one against Estelle Griswold and the other against Dr. Sealy Buxton.
Archival: [00:03:50] The remnants of Comstockery,constitutional liberties and the moral principles of several religions met head on.
Nick Capodice: [00:03:56] Hold on. These providers, Griswold [00:04:00] and Buxton, are violating Comstock three. What does that even mean?
Hannah McCarthy: [00:04:05] To answer that, we're going to have to go back a bit.
Nick Capodice: [00:04:07] How far back we're going to go?
Hannah McCarthy: [00:04:10] This story technically begins nearly 100 years earlier, not in Connecticut at all, but in a little city called New York in 1873.
Nick Capodice: [00:04:21] Now, here is a place I know a little bit about, he got tons of wealth, even more poverty, grand mansions going up next to overcrowded tenement blocks, anti-immigrant sentiment was huge. And you're at the height of Victorian morality, this idea that there is a proper way for women and men to behave. So think not gambling, drinking or having premarital sex, while at the same time gambling houses, saloons and so-called vice workers, a.k.a. sex workers were all over the city.
Hannah McCarthy: [00:04:57] And into this land of great wealth and poverty, [00:05:00] morality and vice sunlight and shadow walk someone by the name of Anthony Comstock.
Nick Capodice: [00:05:08] The inventor of Comstockery. I'm going to guess.
Hannah McCarthy: [00:05:12] That's right. This is where it starts. Comstock was a poster child for Victorian morality, the ultimate anti-vice torchbearer.
Hannah McCarthy: [00:05:20] He considered gambling, prostitution, pornography, erotic literature, contraception and abortion to be obscene. And he wanted all of it eradicated. So he gets busy lobbying Congress to pass a law that will keep Americans moral. And it works, or at least passing the law works. That same year, 1873, Congress passes the act of the suppression of trade and circulation of obscene literature and articles of immoral use.
Nick Capodice: [00:05:54] So the obscene literature thing kind of speaks for itself. But what do they mean by articles of immoral use?
Renee Cramer: [00:06:00] The Comstock laws, where federal laws that made possession and distribution of information about birth control a violation of pornographic laws of pornography laws. So it treated these materials as smut, as dirty, as erotic, rather than as a health care.
Hannah McCarthy: [00:06:18] This is Renee Cramer, a law professor at Drake University.
Nick Capodice: [00:06:21] Hold, how widely available was birth control before this law?
Renee Cramer: [00:06:25] Well, here's what's amazing. From about the 1920s to the 1950s, before the Comstock laws made it illegal, people would buy their birth control from the Sears and Roebuck catalog. They would buy their birth control in the personal aisle at the five and dime.
Hannah McCarthy: [00:06:40] So birth control goes from dime a dozen common to intensely stigmatized. And the reason the setting is important for this one. By that I mean New York City, high rates of immigration, lots of poverty, lots of bigotry is that this law had a target audience.
Renee Cramer: [00:06:58] This was also tied to eugenics. This is also very clearly about which women should reproduce. Middle class, white women should reproduce. Immigrant women should not reproduce. Poor women of color should not reproduce. Poor white women should not reproduce. They weren't being policed in this way at this time. This was middle class and upper class women who would have had access to private doctors, who could give them prescriptions to birth control. And the state had a very formative interest, the nation state, in making sure that they reproduced. It's sometimes called positive eugenics.
Hannah McCarthy: [00:07:30] Eugenics, by the way, is the study of how to make sure people with, quote, desirable characteristics meet and produce children. The idea is to improve the human race, but the fine print is that it's about racism, bigotry, anti-Semitism and ableism.
Renee Cramer: [00:07:46] So Comstock was making sure that those people who could have had access to birth control or knowledge about it didn't and making sure that people felt dirty and obscene for wanting it.
Hannah McCarthy: [00:07:57] Anthony Comstock got his way and then states across the country created their own specific versions of the law.
Elizabeth Lane: [00:08:04] But Connecticut took it a step further and they just completely forbid the use of contraceptives.
Hannah McCarthy: [00:08:10] This is Elizabeth Lane, Professor of political science at Louisiana State University. Now, as early as 1878, people were petitioning Congress to please repeal the Comstock Act, unsuccessfully, I might add. But as time wore on, doctors started to push their luck with it.
Elizabeth Lane: [00:08:28] And one of the first cases actually was in 1938 and a birth control clinic opened in Waterbury, Connecticut. They basically operated kind of unnoticed, right. They just did their thing thinking that, well, perhaps this law has a medical exception.
Nick Capodice: [00:08:48] What counts as a medical exception?
Hannah McCarthy: [00:08:51] These doctors were thinking that women who had complications in past pregnancies or whose lives could be threatened by pregnancy were maybe exempt from this anti birth control law. They thought wrong.
Elizabeth Lane: [00:09:03] In 1939, the following year, that summer, the Waterbury kind of clergy members got together and they basically said this is a clear violation of the law.
Elizabeth Lane: [00:09:20] The police need to do something about it. And the next day that clinic was raided and the two doctors and the nurse who worked there were arrested. And so that was the state of Connecticut v. Nelson. And the Supreme Court of Errors ended up upholding the law.
Hannah McCarthy: [00:09:39] A couple of years later, another doctor went looking for more clarification on the medical exemption question.
Elizabeth Lane: [00:09:46] He basically went before the Supreme Court of Errors in Connecticut and was like, so there is no medical exemption, kind of basically clarifying. And they said, yes, there is no medical exception to this law. Birth control is not allowed [00:10:00] to be used in the state.
Hannah McCarthy: [00:10:02] And this doctor is like, seriously, there is no situation in which a medical doctor would be allowed to help a patient prevent pregnancy.
Elizabeth Lane: [00:10:12] He appeals that decision to the Supreme Court, but of course, the Supreme Court doesn't rule on hypothetical cases at that point, that doctor hadn't been prosecuted in any way for providing birth control to a patient. So he did not have standing for the Supreme Court to rule on his case.
Hannah McCarthy: [00:10:31] Medical providers, Planned Parenthood in particular, are coming at this problem from various angles.
Elizabeth Lane: [00:10:37] Well, the Planned Parenthood League of Connecticut had been working since that case in the 1930s, every legislative session to have someone introduce an amendment to that law from the eighteen hundreds to allow birth control to be used, especially for medical reasons. And they had been unsuccessful.
Hannah McCarthy: [00:10:56] The legislature was actually where Estelle Griswold began, executive director [00:11:00] of Planned Parenthood in Connecticut, started before they got anywhere near trying to get arrested.
Hannah McCarthy: [00:11:08] She and Dr. Charles Lee Buxton went before Connecticut lawmakers.
Archival: [00:11:13] Dr. Buxton, how did you become involved in this birth control case?
Elizabeth Lane: [00:11:17] He was the chair of the OBGYN -- the obstetrics and gynecology department at Yale Medical School. She arranged for him to testify.
Archival: [00:11:27] Dr. C. Lee Buxton: I'm prevented from taking care of patients the way they should be taken care of by a law that exists. I just happened to believe something ought to be done about it.
Elizabeth Lane: [00:11:35] Nothing changed.
Nick Capodice: [00:11:37] So you've got a law based in this antiquated notion of Victorian morality in the midst of the 1960s, one of the most tumultuous and freewheeling decades in world history. Anthony Comstock truly got the most out of his legacy.
Elizabeth Lane: [00:11:52] They started thinking, and that's when they backed up with Fowler Harper, professor at Yale Law School, and he happened to specialize in [00:12:00] family law. And this is where kind of the litigation strategy began.
Hannah McCarthy: [00:12:07] So Griswold and Harper start looking for a way to challenge the law. And they're thinking, OK, married couples have the best case here because we know it's a bridge too far to ask the court to rule on an unmarried woman who may need to use birth control. And they find three married couples either for whom the pregnancies had been life threatening for the mother or whose children either did not survive very long, had major disabilities or had been stillborn. And they challenged this Comstock law in the state Supreme Court. And the court says, sorry, that ban on birth control applies even if you're married and the pregnancy is life threatening. So Griswold and Harper appeal their case up to the Supreme Court. This case is called Poe v Ullman.
Elizabeth Lane: [00:12:51] Once the case got to the United States Supreme Court, they said that there was no controversy because neither the doctor who prescribed the birth control, [00:13:00] Doctor Buxton from Yale Medical School, nor his patients had actually been prosecuted. And so basically the Supreme Court said, well, you don't have standing, nor do we think that it's really realistic that anyone is going to be prosecuted moving forward.
Nick Capodice: [00:13:16] Ergo, we can't rule because nobody actually got in trouble for breaking the law. And it doesn't matter in the first place because who bothers enforcing this law anyways?
Elizabeth Lane: [00:13:24] Estelle Griswold was like, well, if that's the case, great, we'll start opening clinics all over the states. And if that's not the case, not great. But then at least we will have standing to try to take this case before the Supreme Court again. And so that's what they did.
Nick Capodice: [00:13:41] So Estelle Griswold's like, don't mind me, officer. I'll just be over here breaking the law over and over.
Elizabeth Lane: [00:13:49] November of 1961, they opened their Planned Parenthood clinic in New Haven, Connecticut. They were open for ten days prescribing contraceptives and birth control to their [00:14:00] patients, and then they were shut down and prosecuted for violating the law.
Hannah McCarthy: [00:14:06] The difference now is that Estelle Griswold very much did get in trouble. The case has standing and attorney Thomas Emerson is the advocate in this case. And he's before the court and he starts arguing on a First Amendment basis that you can't constrain what a doctor says to a patient.
Archival: [00:14:25] Griswold v Connecticut Oral Argument: Are you coming back to your First Amendment argument? If not I want to ask the question. Well, I'm not getting far on any of my arguments here but uh... uh...
Hannah McCarthy: [00:14:33] And then he goes for a 14th Amendment basis.
Archival: [00:14:41] Griswold v Connecticut Oral Argument: Let me just outline the argument on due process.
Elizabeth Lane: [00:14:45] This argument that we have liberty located in the due process clause of the 14th Amendment primarily, and this liberty gives individuals the ability to make their own decisions with regard to using contraceptives.
Nick Capodice: [00:15:00] So they're arguing on the first and Fourteenth Amendment basis. Those aren't the two, I think, of when we're talking about privacy.
Hannah McCarthy: [00:15:06] What happens is at the last minute, Emerson finds an article in the New York University Law Review that focuses a bunch on the Ninth Amendment. And Emerson is like huh. That could work.
Archival: [00:15:19] Griswold v Connecticut Oral Argument: Certainly the Ninth Amendment meant to reserve some rights to the people. And if there's any right that you would think would be reserved to the people on which the government should not interfere with this, it would be this right? Yeah.
Elizabeth Lane: [00:15:32] And so at like the 13th hour, they ended up including those Ninth Amendment arguments in their brief as well.
Elizabeth Lane: [00:15:42] And as it turned out, that was quite effective.
Hannah McCarthy: [00:15:44] See, the Ninth Amendment tells us that just because something is not in the Constitution, that doesn't mean that it is not one of our rights. And that kind of like unlocks a right that the Supreme Court had been thinking about quite a bit lately, [00:16:00] specifically four years earlier in a case in 1961.
Nick Capodice: [00:16:05] In a little case called Mapp v Ohio.
Nick Capodice: [00:16:08] Right. A case that hinged on an unspoken right to privacy.
Hannah McCarthy: [00:16:12] Right. Here's Renee Kramer again.
Renee Cramer: [00:16:14] Douglas wrote the majority opinion. There were two dissents, but Douglas didn't even really want to think through the First Amendment claim. He does a bit, but he says the most important thing here is that we actually have a right to privacy. And this line is why Griswold is so important, because up until Griswold versus Connecticut, privacy doctrine rooted in the Fourth Amendment was all about matters of criminal law. So that's the development of privacy law. And here Douglas says, you know, there are these zones of privacy, these spaces that the state shouldn't enter. And two of those zones are implicated here. One, the marriage. There's a point in his decision. He calls it the sacred precinct of the marital bedroom.
Nick Capodice: [00:16:59] Oh, that phrasing, these sacred precinct of the marital bedroom and marital. Seems like the operative word here.
Hannah McCarthy: [00:17:09] Oh, very much so.
Renee Cramer: [00:17:10] Because this is also about any time a woman in Griswold is making a medical decision, she's making it in consultation with her husband, who is a man and with a doctor who is a man. So these are rights of privacy whereby men are empowered to tell women about their health care options and women are empowered to act on them. So the zones of privacy of the marital bedroom and the doctor's office are the places where women can exert that autonomy. But they're both really bounded places. And Douglas is clear on it. I mean, this is a sacred precinct. This is God ordained. This is marriage.
Hannah McCarthy: [00:17:45] The court is ruling in a seven to two decision that, yes, a doctor is permitted to talk about the spicy subject of contraceptives with a patient when it involves the protected private space of the marital bedroom. Basically, this is a right reserved for married couples.
Hannah McCarthy: [00:18:08] Still, this ruling reveals this new power of the right to privacy. Justice Douglas writes that privacy has something called a penumbra.
Renee Cramer: [00:18:20] Penumbral is a great word. It can be a confusing word. And I think of it in two different ways than an actual penumbral is like a candelabra.
Renee Cramer: [00:18:28] So a penumbra is the light that is shed by a flame. So it's the opposite of the shadow. It's what's illuminated by a candle.
Renee Cramer: [00:18:36] But I also like to think of a penumbral right as an umbrella. It's the umbrella you stand under in order to not get wet to in order to get out of the storm.
Renee Cramer: [00:18:46] So you imagine this married couple walking into their doctor's office saying we do not yet want to have children and they're holding their umbrella and the doctor says, hey, come under this penumbral right of privacy.Step in under this with me.
Renee Cramer: [00:19:00] I can give you this information because the court has now said this little area, this little light illuminated by the flame is a zone of privacy and you can have private decision making Control in this area around this part of your reproductive lives, so the penumbral right of privacy is articulated in Griswold starts to open up this range of spaces.
Renee Cramer: [00:19:23] It starts to illuminate different zones of privacy where people can make reproductive decisions and eventually where people can make sexual and intimacy decisions beyond birth control and abortion.
Renee Cramer: [00:19:35] But on to areas of same sex couples, same sex relationships, same sex marriage, but also interracial marriage earlier, way earlier than those became legal.
Nick Capodice: [00:19:45] So first, the Supreme Court reveals this unenumerated rights and then they say, hey, by the way, this thing lights up.
Hannah McCarthy: [00:19:55] Making it a lot easier to see what else falls under the right to privacy.
Archival: [00:20:02] Please listen carefully.
Archival: [00:20:05] The right of Richard and Mildred Loving to wake up in the morning or to go to sleep at night knowing that the sheriff will not be knocking on their door or shining a light in their face in the privacy of their bedroom for illicit cohabitation.
Archival: [00:20:25] That is what gave the people of this state and across the country the right of privacy to the decision to end the pregnancy during the first three months belongs to the woman and her doctor, not the governor, as a gay rights case as well as a privacy case. And I think in that respect, Justice Scalia, with whom I do not always agree, was the most important gay rights ruling ever. And it's the culmination of decades of legal battles. It comes from a Supreme Court that just 30 years ago said gay people could be punished as criminals out of that historic Supreme Court decision legalizing same sex marriage across the land.
Archival: [00:20:59] And it's profound. The five to four vote [00:21:00] in many ways reflecting the huge societal shift of the last 20 years. The president saying today there are days like this when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.
Hannah McCarthy: [00:21:15] That does it for Griswold v. Connecticut, but that does not do it for its impact, ruling on a married couples right to privacy soon led to Eisenstadt v. Baird, which ruled that a single woman has a right to privacy when it comes to birth control. And, of course, one of the most hot button privacy cases in modern history, Roe v. Wade and a woman's right to privacy and choice. So naturally, we're tackling that on Civics 101. This episode was produced by me, Hannah McCarthy with Nick Capodice. Erica Janik is our executive producer and our team includes Jackie Fulton. Music in this episode by Joel Cummins, Nangdo, Lobo Loco, Ketsa, Juanitos, Jahzzar, Crowander and Bio Unit. Just a reminder, our student contest is still going on! It’s called There Outta Be a Law, and we want to know what law you would propose to fix a problem in your school, town, state or country. You’ve got until the end of this month, March 2021, to submit your idea via voice memo or video. All students of all ages welcome, check out the deets at our website, civics101podcast.org. [00:22:00]
