The Contraception Cases, cont.

Earlier, Ed Whelan wrote that the case that brought us Griswold v. Connecticut, was essentially a staged case. The law against contraception had not been enforced. The case was brought to make a point, and to establish an entitlement to use contraception.

June 7 1965— In Griswold v. Connecticut, the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of an 1879 state law against use of contraceptives—a law that had never been enforced. In his majority opinion declaring a constitutional right for married persons to use contraceptives, Justice William O. Douglas (see This Week for April 4, 1939) infamously asserts that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious [of these] guarantees create zones of privacy”—all of which, of course, it is the Court’s power and duty to discern. Douglas then cites six cases that supposedly “bear witness that the right of privacy which presses for recognition here is a legitimate one.” In fact, those cases did no such thing. (One case, for example, held merely that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate due process.)

Douglas purports to confine his ruling to the marital relationship: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” That this celebration of marriage would come from Douglas, who, in the year he penned it, was divorcing his third wife (after two years of marriage) and marrying his fourth, might suggest that it shouldn’t be taken seriously. The Court’s ruling seven years later in Eisenstadt (see This Week for March 22, 1972) would confirm that sense.

Ed doesn't specifically comment on the strategic value of this case. He suggests that the point of the case is to establish a constitutional right to use contraception. Another point that I have seen suggested is that this case allowed the public establishment of the free-standing birth control clinic. Prior to Griswold, women had been able to get contraception from the doctors, even though it was technically illegal. After Griswold, Planned Parenthood could open clinics that were essentially dedicated to nothing but contraception, and later, abortion.