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Posted by on Jun 9, 2011 in Law | 30 comments

Thank the Gods for Griswold v. Connecticut

WASHINGTON – There is no case that means more to modern women than Griswold v. Connecticut, at least that’s my take.

Estelle Griswold, left, of New Haven, Connecticut, reading a newspaper account of the U.S. Supreme Court's ruling in her case.

June 7th, 2011 marks the 45th anniversary of the landmark 1965 Supreme Court decision Griswold v. Connecticut, which legalized family planning and the right to individual privacy in family planning decisions. But nearly 50 years later, women in the United States can hardly find cause for celebration, because we are engaged in a full-on battle to maintain access to contraception. – Jodi Jacobson

Jodi Jacobson has a terrific piece on Griswold‘s anniversary, drilling home the challenge women still have today in getting access to contraception. It’s something Margaret Sanger gave her life to so many years ago.

No one group is more responsible for the lack of reproductive health care, counseling and absence of full contraceptive availability than the Republican Party and their surrogates. The women of the Right who are against this basic public necessity are a disgrace.

That Speaker Pelosi, the first female speaker in U.S. history, and Pres. Obama helped Democrats like Rep. Stupak marginalize women’s freedoms in the health care bill was breaking faith with women who helped elect these officials. When Obama doubled down to take funding away from the women of Washington, D.C. he made matters worse.

To teach Democrats a lesson, putting a Republican in the White House would simply hurt more women. However, the economics of the times, which hits women very hard, has taken our eyes off reproductive health care to the economy. The sad truth is we’re not getting equal attention from either big party who’ll be hawking their policies for 2012 and promising the moon.

Don’t believe Obama or the Republican nominee.

Today, Republicans and some Democrats are attempting to circumvent what women (and every other American) won through this Supreme Court decision, by waging a war against female freedoms that is attempting to make us a prisoner of the states we live in. Many of the laws legislatures are trumpeting or passing clearly smacking into and against Roe, but advocates are too frightened to take them on, which NOW President Terry O’Neill said to Rachel Maddow, while Roe v. Wade becomes “obsolete” in the views of some analysts.

One day Americans will have to ask is freedom just for men?

Because when you take away a woman’s right to privacy, which begins with the power to control her own body, you are making us unequal to males.

There are laws that come with Roe v. Wade that make women take responsibility in a way that puts the notion of “abortion on demand” down. That’s not what any intelligently mature female is asking. We all know we have restrictions, which I fully support.

Abortion is a legal, safe and an important reproductive health option in extreme circumstance that includes abortificients and other methods of stopping pregnancy. It is a woman’s legal right to make this decision without the interference of any bureaucrat, religious fanatic, or legislator.

If you don’t want an abortion don’t have one, was the text of a bumper sticker in Missouri, where I grew up, that caused a lot of trouble, but there’s truth in it.

If you get in a situation where you feel there is no other choice, don’t feel ashamed and don’t allow anyone to tell you it’s wrong, because you are the only one who knows.

It’s difficult, for some it’s tragic. For other women it’s a matter of personal survival.

Justice Earl Warren, appointed by Pres. Dwight D. Eisenhower, was a great man and the Supreme Court, the Warren Court, he presided over helped make women equal, with Justice William O. Douglas writing the majority opinion. Justice Warren followed Thomas Jefferson’s idea of the U.S. Constitution to the letter.

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” – Thomas Jefferson (engraved on one wall of the Jefferson Memorial.)

Today the Republican Party and some Democrats are trying to undo Roe v. Wade, but what they really want to obliterate from U.S. history is Griswold.

Griswold v. Connecticut

Facts of the Case:

Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception.
Question:

Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?

Conclusion: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.

Taylor Marsh is a Washington based political analyst, writer and commentator on national politics, foreign policy, and women in power. A veteran national politics writer, Taylor’s been writing on the web since 1996. She has reported from the White House, been profiled in the Washington Post, The New Republic, and has been seen on C-SPAN’s Washington Journal, CNN, MSNBC, Al Jazeera English and Al Jazeera Arabic, as well as on radio across the dial and on satellite, including the BBC. Marsh lives in the Washington, D.C. area. This column is cross posted from her blog.

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Copyright 2011 The Moderate Voice
  • Indefatigably

    The whole reason that this is still a concern and an issue is because bad law often leads to more bad law.

    Rights invented whole cloth by the Courts, even those that seem and are reasonable on their face, that are not grounded in the Constitution are by that very nature of the circumstances of their creation and existence subject to whims of future Court rulings.

    The only solution that can stand the test of time is a Constitutional Amendment, either for privacy in general or for women’s reproductive rights more specifically.

    Besides taking the issue out of the Courts, it would provide an unassailable grounding and legitimacy that would end the decades of controversy that Griswold and Roe have caused by short-circuiting the Legislative and Constitutional processes.

    IMHO

  • casualobserver

    As I understand your tome, you have 2 different issues. You have a 45 year old decision affirming your legal right to buy a service of your own choosing and a bunch of current day noise about having me pay for it.

    I hereby express my full concurrence with your legal rights to choose such a service, but will direct you to write your own check.

  • Indefagitably,

    The last Constitutional amendment to be ratified, deferring congressional pay raises to the next session of congress, took 203 years to be ratified.

    Other than that, we haven’t had a constitutional amendment ratified in 40 years. Because of the divide in the nation, constitutional amendments have, most unfortunately, become an anachronism of our past.

    Intellectually you have a valid point, but as a practicle matter the option of amending the constitution is dead…for any purpose for the foreseeable future.

  • Indefatigably

    tidbits –

    And that is a tragedy ALSO brought on by the Courts.

    As long as they will make up new Constitutional rights, that is a safer path than the proscribed one for those who wish to change the Constitution. But as I said, that leads to serious items never really being resolved, as they are subject then to the changing tides of the Courts, stare decisis be damned.

    The lack of political will to confront these issues is grounded in the simple fact that they do not have to be addressed, thanks to the Courts.

    One of the greatest strengths of the Constitution is the built-in mechanisms to allow for it to be a living document through the Will of the People, not the will of the Courts or Executive Fiat.

    Our modern society’s willingness to abdicate that over-riding authority to govern our government is one key reason American politicians now view themselves as an enlightened ruling class, mainly above the rules and laws they impose upon the rest of the country, and in complete and utter contempt of us.

  • SteveinCH

    I’ll do nothing but quote Justice Black

    “I repeat, so as not to be misunderstood, that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision [p521] of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up, and, at the same time, threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have. [n16] [p522]

    I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me. And so I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause, with an “arbitrary and capricious” or “shocking to the conscience” formula, was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e.g., Lochner v. New York, 198 U.S. 45. That formula, based on subjective considerations of “natural justice,” is no less dangerous when used to enforce this Court’s views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all in cases like West Coast Hotel Co. v. Parrish, 300 U.S. 379; Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U.S. 236, and many other [p523] opinions. [n17] See also Lochner v. New York, 198 U.S. 45, 74 (Holmes, J., dissenting).”

    It’s simply not possible to say it any better than that.

  • JSpencer

    Excellent post Taylor. It’s shocking and disappointing there are still so many people in this day and age working to oppress women by denying them autonomy and control over thier own bodies. By extension, the absence (and rejection) of family planning worldwide has long been responsible for an incredible amount of extended suffering. I’m sure the anti-choice, anti-family planning folks are convinced this is somehow god’s will, but who would want anything to do with such a god? Anti-woman, anti-science, anti-environment… make no mistake, this is one of the legacies of our own political right! What can you say about this promotion of willful ignorance? AFAIC it’s a form of mental illness. Here it is the 21st century and we are still sliding backwards in an evolutionary sense. Pathetic.

  • DLS

    Fans of judicial activism, liberal judicial activism since at least World War II (if not the late 1930s), are of course blind to understanding that it is illegitimate or that there’s otherwise anything wrong with their getting what they want, whatever way possible.

    No words, not even Black’s, will educate, much less convince them.

  • D –

    Hugo Black was an activist judge.

    – He helped sustain every New Deal piece of legislation that came before him as the first new appointment after the court packing scheme failed.

    – He wrote the opinion inKorematsu v. US, upholding the Japanese internment during WW II.

    – He wrote the opinion in Engle v. Vitale, finding prayer in school unconstitutional.

    – He wrote Gideon v.Wainwright, requiring states to pay for indigent defense.

    – He wrote Wesbury v. Sanders, one-men-one-vote, and later voted to use the 14th Amendment to extend one-man-one-vote to state legislative bodies.

    – He joined Brown v. Board of Education, including enforcement that included forced school busing.

    – He joined Miranda v. Arizona, which legislated from the bench what police must tell arrestees.

    Like many justices, his “strict” constitutional interpretation depended on the subject matter. Just my opinion.

    tidbits

  • JSpencer

    Well, I guess it’s OK if the judicial activism comes from the right eh? 😉 Any so-called “judicial activism” that moves us closer to being a sane and well-reasoned society is fine by me.

  • SteveinCH

    Tidbits,

    I’m curious as to your definition of activist. Sustaining legislation seems hard to argue as an activist activity for the court. Your list seems a mix of activism and not. I’d also say, for a 20th century jurist, it’s a pretty short list. I’m sure you could add more with lesser known cases but the activist part of that list (as opposed to the bad reasoning or bad outcome part) seems pretty small to me.

    JS…I’m not sure what you are referring to but I’m not at all surprised that you have an end justifies the means orientation.

  • JSpencer says:
    June 9, 2011 at 4:16 pm

    You’re dead on. Anyone who is an abortion rights opponent should be for contraceptive availability. Anyone against this is not only wrong, but has no right to pontificate about morality.

    These same people believe freedom is just for men.

    What’s happening across this country in state after state proves it.

  • Thanks, everyone, for your comments on this subject. They’re very interesting to read and digest.

    casualobserver says:
    June 9, 2011 at 2:32 pm

    You are incorrect.

    Women always have to “pay for it” where reproductive health is concerned, as well as abortion.

    I object to making it harder and harder for women to purchase insurance and/or get an abortion, which is a LEGAL procedure.

  • SteveInCH

    Defining judicial activism takes many forms. William Requist defined it as applying meaning to words not found in their ordinary usage. Other define it as “legislating from the bench”. I think the best definition is that it is a pejorative for any decision you don’t happen to agree with.

    My usual caveat. I have no problem with judicial activism. Virtually all the most important decisions in judicial history from Madison v. Marbury to Brown v. Board of Education to Citizens United have met the criteria either set by Justice Renquist or have constituted some form of legislating from the bench.

    The New Deal cases were extremely expansive in their interpretation of the Commerce Clause and upended more than a century of strictly limiting the Commerce Clauses’ ability to interfere with states rights.

    The one-man-one-vote cases…as DLS will tell you…were a radical interference with states rights, particularly since it applied to state senates but not the US Senate.

    Hugo Black’s best ideological friends on the Supreme Court were William O. Douglas and Earl Warren. He was part and parcel of the Warren Court, and comparison to the Warren Court is another descriptor of activism to some.

    You are correct, my list is not inclusive of Black’s 37 years on the Supreme Court. He is most noted for being a literalist on the First Amendment.

  • roro80

    Brava Taylor. Excellent piece.

    When it comes down to it, all the Very Important Men talking about Very Important Things ™ like states rights and court activism and all that are just skirting the issue. Women need to be able to make thier own reproductive decisions, and anything that gets in the way of that is horsesh*t politics, sexism, puritanical moralism, and outright violence against women.

  • SteveinCH

    Tidbits,

    My issue with Griswold isn’t that it’s “activist”, it’s that it is very poorly reasoned. By the definition you use, both activist and nonactivist decisions can be well or poorly reasoned I guess.

  • Jim Satterfield

    If the social conservatives ever succeed in overturning Roe V. Wade I expect them to go after Griswold next.

  • SteveInCH,

    I would agree with your last comment. It happens that I like the result in Griswold. Having a constitutional right to privacy sits well with me. Allowing people to make their own reproductive choices also sits well with me. Using right to privacy to protect LGBT sexual activity from discriminatory criminal sodomy statutes fits my scheme of things too.

    Would I have preferred that the Supreme Court had found privacy to be one of the unenumerated rights “reserved to the people” instead of the penumbra approach? Probably, but I’ll take my right to privacy as it comes, which happens to be through Griswold.

    Roro80,

    I disagree that discussion of how cases come to be or not be is sexist of horsesh*t politics. Griswold is an important decision. It is also one that is under fire, along with Roe. If Obama loses in 2012, and a Republican president gets to replace Ruth Bader Ginsburg, Griswold and Roe may both be on the chopping block. There are clearly four current justices who would overrule both decisions in a heartbeat if they could get a fifth vote.

    As you have no doubt heard me say before, I believe women’s reproductive rights should be decided by a national referendum in which only women are allowed to vote. But, that’s not a real possibility. In the meantime, all who value Griswold (and/or Roe) need to be in a position to defend those decisions, lest they be lost. And that requires an understanding of how they came to be and where they are open to attack. My two cents.

  • SteveinCH

    I guess my point tidbits is I don’t actually believe in a right to privacy. I agree with your point of view on outcomes. I would strongly prefer they be legislatively derived.

    Failing that, I’m with Inde…constitutional amendment required.

  • Well, if you don’t believe in a right of privacy Steve, we have discovered a wide divergence of opinion. That’s ok. In fact I applaud you for being, I think, the first person I’ve ever encountered who was honest enough to say straight out that he didn’t believe in a right of privacy.

    For my part, I sure hate to think of the freedoms we’d lose were it not for a right to privacy. But I guess we’ll have to agree to disagree on this one.

  • SteveinCH

    Tidbits,

    We don’t have a right to privacy from government intervention. Such a right would, for example, prevent the auditing of tax returns and a whole host of other government violations of personal privacy. And it would most certainly prohibit the government from forcing me to buy health insurance ; )

    But that’s a topic for another day I guess. As to losing freedoms, I don’t suspect we’d lose any at all as legislative remedies would address most of the more important areas, at least some states would.

    And to be clear, I don’t believe any such right exists in the Constitution. Whether it should (in a limited fashion) is another discussion. Whether it does in some more fundamental sense is also another discussion.

  • PJBFan

    I do not like the Griswold decision, and I will admit it. That does not mean I disapprove of contraception. On the contrary, I strongly support the use of contraception. I just think, like Steve, that the Supreme Court was wrong to create, out of thin air, a right to privacy.

    To quote my Stiffs and Gifts professor, the right of privacy is a nice idea; too bad it isn’t anywhere in the Constitution.

  • JSpencer

    I think respect for privacy has long been an instrinsically American value and has been cherished as a right by it’s people regardless of whether it has enjoyed constitutional approval. No doubt that particular sensibility is on it’s way to becoming obsolete – along with some other once held dear American values. I’m glad I’m almost 60 and had the chance to live when things like honor, conscience, honesty, fairness and the sense of some things being sacred were more common than they are now.

  • casualobserver

    I guess you guys must see something in the legal reasoning that is flawed in griswold, but I think the end result is in keeping with a conceptually appropriate view of the Constitution….in that I subscribe to the view the C was premised on the idea an individual has unlimited rights and freedoms relative to their own behavior and the C exists to define where govt may interfere or abridge that unlimited concept. Therefore, if Connecticut said Griswold could not legally run a PP operation, then if Scotus said the state has no ability to abridge that right, I don’t see how that is activist or troubling to libertarian inclined persons.

  • casualobserver

    “You are incorrect. Women always have to “pay for it” where reproductive health is concerned, as well as abortion.

    I object to making it harder and harder for women to purchase insurance and/or get an abortion, which is a LEGAL procedure.”

    And you are playing silly semantical games. If you want to be perceived as making a real contribution instead of just practicing the favorite

    pasttime of liberals….jawboning……then set up the Taylor G Marsh Walk for the Free Contraceptive. You could adopt lavender ribbons and wristbands

    as your recognizable trademark and set up events throughout the country on a given day of the year. Once you establish your 501c3, I will be most happy to make

    the first contribution of $2500.

  • SteveinCH

    CO,

    The problem in my view with your formulation is the wording “relative to their own behavior”. Implicitly, you must mean their own behavior that doesn’t impact others or doesn’t impact another policy objective that is deemed more important.

    Because current life is replete with issues where you are subject to laws that influence your own behavior but don’t affect others directly. As an example, I am required to have airbags in my car by law. Does my lack of an airbag affect other citizens? You certainly can construct a logic where it does maybe sort of but it’s a pretty tenuous place to go.

    Registrations, regulations, etc., etc., etc. There simply is no unlimited right to privacy as would be understood by the “natural rights” argument that underlies the 9th amendment. Leaving aside of course the fact that the court didn’t make that argument, it made multiple arguments but not that one.

    And liking the outcome is not a good principle for Constitutional law (unless you are JSpencer that is)

  • casualobserver

    You really know how to cut to one’s jugular, Steve.

    Ok, not fully grasping your argument, I went to Wiki. I found the dissent of John Marshall Harlan II to resonate with me. However, my guess is you must side with Justice Stewart….an uncommonly silly law, but nonetheless constitutional….meaning the legislature should be able to make a silly law, but assuming it follows due legislative process, it cannot be reversed by the Judiciary.

    Do I have your point better understood now?

  • SteveinCH

    Yes indeed. Again, in my view, as the legislative process is far more flexible and adaptable than the judicial process, the judiciary should do as little as possible.

    Although I will say, Scalia wrote a very interesting dissent in a recent case basically taking legislatures to task for writing purposefully vague laws and forcing the judiciary to clarify.

    I think I saw it on the Atlantic website. Tidbits could give it much better treatment than I but it was interesting and is making me think a bit more charitably about the judiciary ; )

  • Jim Satterfield says:
    June 9, 2011 at 7:49 pm

    If the social conservatives ever succeed in overturning Roe V. Wade I expect them to go after Griswold next.

    Yep, Griswold is their ultimate target, the prize.

  • roro80

    I disagree that discussion of how cases come to be or not be is sexist of horsesh*t politics.

    tidbits, I think I must have stated my position poorly. I find it interesting, and I know that it’s important, to understand where the cases came from and what the current challenges to them are. What I find to be horsesh*t is when people use legal minutae to argue that there are circumstances under which women should not have the right to control their own fertility. If “States’ Rights” means that women in some states don’t have control over their medical care and bodies, then this is not a matter that should be left up to the states.

    I do, by the way, realize that the way I’m stating it is overly reductive, but there’s just no way, whatever your legal argument, that women (and, by the way, men) should not own their own bodies and what goes in and out of them. If I were queen of the world, that would be rule number 1: each person owns his or her own body. It’s absurd to me that this is under dispute.

  • SteveInCH,

    My article on Sykes v. US, particularly Scalia’s dissent was posted earlier today.

    http://themoderatevoice.com/113059/vehicular-flight-is-a-violent-felony-sykes-v-u-s/

    I agree his dissent is much more interesting than the opinion.

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