In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court invalidated a Connecticut law that made it a crime to use birth control devices or to advise anyone about their use. Relying in part on penumbras from the First Amendment, this landmark decision elaborated the right to privacy that subsequently became the basis for the Court’s abortion decision in Roe v. Wade (1973).
Connecticut law prohibited prescribing birth control
The law in question was a holdover from the Comstock era, but Connecticut chose to apply it in the case of Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and the group’s licensed physician, Dr. C. Lee Buxton, who had prescribed birth control devices to married women.
Court said Constitution gave a right of privacy
Writing for the majority, Justice William O. Douglas began with a review of cases, many of them highlighting that the First Amendment protected such collateral rights as the right of association, the right to educate one’s children, as well as “the right to read . . . and freedom of inquiry, freedom of thought, and freedom to teach.”
Of note, he cited Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and NAACP v. Alabama (1958) in suggesting “that specific guarantees in the Bill of Rights have penumbras [shadows], formed by emanations from these guarantees that help give them life and substance.” Douglas proceeded to link the First Amendment rights to provisions in the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to formulate a right of privacy adequate to protect married couples preferring to use birth control.
In concurring opinions, Justice Arthur J. Goldberg relied on the Ninth Amendment and its idea of “unenumerated” rights, and Justice John Marshall Harlan II relied on the due process clause of the Fourteenth Amendment to establish a right to privacy. Justice Byron R. White also focused on the role of due process in protecting marital privacy.
Dissenters said law was constitutional
In his dissent, Justice Hugo L. Black classified Connecticut’s law as “offensive” but constitutional. He argued that a violation of the First Amendment would have occurred if Connecticut had convicted the doctor simply for conveying advice about contraceptives. He, however, distinguished speech from conduct, stating, “Merely because some speech was used in carrying on that conduct . . . we are not in my view justified in holding that the First Amendment prohibits the State to punish their conduct.” He further asserted that the right of privacy required an involvement of courts to enforce natural law that was at odds with their constitutional mandate.
Also in dissent, Justice Potter Stewart stated that the Connecticut statute was “an uncommonly silly law” but could find nothing in the First Amendment or other constitutional provisions to invalidate it.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.