Griswold v. Connecticut (1965) established the constitutional right of American couples to use birth control. But the decision has become significant for more than just birth control. It is the bedrock upon which the constitutional right to privacy was built. Without Griswold, there may not be Roe v. Wade, Lawrence v. Texas, or Obergefell v. Hodges, to name a few. These cases granted a right to abortion, a right to gay sex, and a right to same-sex marriage, respectively.
It all started with Griswold. And while Griswold is an old case, the issues discussed in the decision, and its holding, remain relevant and controversial today. Now that the U.S. Supreme Court has overturned Roe and taken away one privacy right (the right to an abortion), the holding in Griswold is on shakier ground than ever before.
This article discusses the landmark reproductive rights case and its impact on similar laws and cases.
What Happened in Griswold v. Connecticut?
In 1965, Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a New Haven physician and a professor at Yale, were arrested and fined $100 for giving contraception advice to married couples.
At the time, a Connecticut law prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception" and punished anyone who "assists, abets, counsels, causes, hires or commands another" to do so. Put simply, it wasn't a crime to sell birth control devices, but it was a crime to use birth control or any drug or medical instrument to prevent pregnancy or help anyone else use birth control. Griswold and Buxton were clearly in violation of the law.
Griswold and Buxton sued the State of Connecticut, claiming the law violated their constitutional rights. The issue at stake was whether a married couple had a constitutional "right of privacy" to receive counseling on the use of contraceptives.
The "Zone of Privacy" In the Constitution
In a 7-2 decision written by Justice William Douglas, the Court decided that the state law against contraceptives violated a "zone of privacy" inherent in the Constitution. Notably, the Court found constitutional protection emitting from "penumbras," or shadows, within several amendments to the Constitution and the Bill of Rights.
As the majority opinion put it, ". . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." According to the Court, one of these guarantees is a certain measure of privacy and liberty from government control over private life and beliefs.
In describing this right to privacy, the Court pointed to the First, Third, Fourth, and Fifth Amendments to the U.S. Constitution. The First Amendment gives a right to free speech and freedom of religion. The Third prohibits the government from stationing troops in homes. The Fourth prohibits the government from conducting unreasonable searches and seizures. The Fifth, meanwhile, allows citizens to avoid incriminating themselves under oath. Looking at these amendments together, the majority found an underlying reliance on freedom and liberty in the home and in personal beliefs.
Since laws prohibiting birth control target the most intimate aspects of couples' lives, it violates this longstanding constitutional right to privacy. Any law encroaching on an individual's privacy right must therefore be "compelling" and "narrowly tailored" to achieve an absolutely necessary government goal. This level of review is known as "strict scrutiny."
It is extremely rare that any law survives strict scrutiny, and in Griswold, Connecticut's prohibition on birth control was no different. The government's interest in prohibiting birth control was neither absolutely necessary nor narrowly tailored to a legitimate government interest. As such, the Connecticut statute was unconstitutional, and the Supreme Court struck it down.
Substantive Due Process Under the Fourteenth Amendment
As with all privacy rights cases, the majority in Griswold also heavily relied on substantive due process under the Fourteenth Amendment. The due process clause is not part of the Bill of Rights. Instead, the Fourteenth Amendment is a Reconstruction-era Amendment that provides in part: "“No person shall…be deprived of life, liberty, or property, without due process of law . . ."
There are two important concepts regarding "due process." There is procedural due process, which prohibits the government from taking away rights or liberties without going through proper legal channels. For example, the government cannot criminally sentence anyone without first proving them guilty of a crime at trial. There is also substantive due process. This much more controversial aspect of due process involves rights so fundamental to America that the courts must subject any legislation infringing on them to strict scrutiny.
The Fourteenth Amendment, unlike the Bill of Rights originally, also applies to state laws. This means that any state law in violation of the Fourteenth Amendment is unconstitutional.
In Griswold, the Court found that the due process clause protects liberties that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." This includes the zones of privacy found throughout the Bill of Rights.
A Quick Summary
Because Griswold involves a complicated legal theory, a little confusion is understandable. Here is a quick summary of the holding in Griswold:
- There is a "zone of privacy" found in at least four Constitutional Amendments that give Americans liberty and freedom from government control over personal beliefs and choices.
- Because these rights are so fundamental to our system of government, any law that violates the right to privacy must survive strict scrutiny - meaning that the law must be narrowly tailored to achieve a compelling government interest. Very few laws meet this test.
- State laws that violate the right to privacy are unconstitutional due to the Fourteenth Amendment's due process clause, which incorporates the Bill of Rights and prevents states from issuing laws in violation of substantive due process.
The two dissenters (Justice Black and Justice Stewart) disagreed there is a constitutional right to privacy but still found the law to be outdated and unenforceable in practice. They famously asked: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" Justice Stewart was refreshingly blunt, writing, "I think this is an uncommonly silly law."
Despite finding the law ridiculous, the two Justices did not buy the majority's holding that there was a right to privacy in the Constitution, preferring a more literal reading of the rights granted by the Amendments. Justice Stewart also rejected the idea of substantive due process, a position some conservative judges hold to this day.
The Right to Contraceptives Since Griswold
Since Griswold and the attempts to outlaw married couples from using birth control, the right to contraceptives has been expanded and further defined by the court. In Eisenstadt v. Baird (1972), the court found that unmarried couples have the same right to birth control as married couples. The court further expanded access to birth control to persons under the age of 16 in Carey v. Population Services, Int'l (1977) because not doing so would discriminate against married females between the ages of 14 to 16.
More recently, the Supreme Court has placed some restrictions on the right to contraceptives with its decision in Burwell v. Hobby Lobby Stores, Inc. (2014). In that case, the Court held that a for-profit corporation could refuse to provide insurance coverage for birth control to its employees based on the corporation's religious beliefs. While this decision limits access to birth control, there is nothing in the decision that removes anyone's right to contraceptives. The decision was also limited to closely held corporations that refuse to provide health insurance for contraceptives based on claims of religious beliefs.
Is Griswold in Danger of Being Overturned?
As mentioned, the overall reasoning in Griswold v. Connecticut regarding the constitutional right to privacy has led the Supreme Court to find other privacy rights, including same-sex marriage and, until recently, abortion. But in Dobbs v. Jackson Women's Health, the Supreme Court, for the first time, took away a right under the Fourteenth Amendment.
In a concurring opinion, Justice Clarence Thomas wrote to note his support for eliminating all rights under substantive due process, including the right to birth control provided in Griswold. However, since it is only a concurrence, Thomas' thoughts on substantive due process are not law. But it does raise, for the first time in most American” lifetimes, the specter that the right to privacy may be in significant danger.
While privacy and reproductive rights cases continue to undergo political and legislative scrutiny, Griswold v. Connecticut remains the law of the land, at least for now.
Talk to an Attorney to Learn More About Your Reproductive Rights
The Griswold case was a turning point in American law for a range of family law issues, from access to contraception to marital rights for same-sex spouses. However, as evidenced by the Supreme Court's ruling legalizing same-sex marriage in 2015, many of these marital privacy issues are still contested before the Supreme Court. If you have a legal issue related to reproductive rights or marital privacy rights, you can learn more about the law and your rights by speaking with a family law attorney in your area.