Griswold v. Connecticut

Summary

Because it concerns contraception and marriage, the case is best studied with a teacher's guidance. Since 1879 Connecticut law had made it a crime for any person to use a drug or device to prevent conception, and a general accessory statute allowed anyone who assisted or counseled such use to be punished as a principal. In November 1961 Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a Yale Medical School professor, opened a clinic in New Haven that advised married couples. They were arrested within ten days, convicted as accessories and fined one hundred dollars each, and Connecticut's appellate courts affirmed. The question was whether the Constitution forbids a state to prohibit married persons from using contraceptives. The appellants argued that the law invaded a sphere of marital privacy protected by the liberty of the Fourteenth Amendment. Connecticut argued that the legislature had acted within its police power on a question of public morals, that no provision of the Constitution mentions such a right, and that the Court should not return to the pre-1937 practice of judges striking down laws they consider unwise. On 7 June 1965 the Court reversed, seven to two. Justice Douglas first held that the doctor and director could assert the rights of the couples they served. Disclaiming any return to Lochner, he reasoned that specific guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees, that create zones of privacy, and that marriage lies within such a zone; a law forbidding use, rather than sale, reached into the home itself. Justice Goldberg, joined by Chief Justice Warren and Justice Brennan, relied on the Ninth Amendment as evidence that fundamental rights exist beyond those enumerated. Justice Harlan concurred only in the judgment, holding that the Due Process Clause protects basic values rooted in history and tradition on its own, without depending on the Bill of Rights. Justice Black, dissenting, said he found the law as offensive as his colleagues did but could find no constitutional provision forbidding it, and warned that substituting the word privacy for the specific words of the Fourth Amendment invited judges to strike down laws by their own lights. Justice Stewart, joined by Black, called the statute an uncommonly silly law but found no general right of privacy in the Constitution and said the remedy lay with Connecticut's voters. The library text includes Douglas's opinion, Harlan's concurrence and Stewart's dissent, with parts of Goldberg's concurrence and Black's dissent; Justice White's concurrence is not included, and notes are dropped. Eisenstadt v. Baird (1972) extended the holding to unmarried persons, and Roe v. Wade (1973) built on its right of privacy. When Dobbs v. Jackson Women's Health Organization (2022) overruled Roe, the majority stated that its decision did not cast doubt on precedents such as Griswold, while Justice Thomas's concurrence urged reconsideration of the Court's substantive due process cases.

Plot or Argument

• The clinic, the statute and standing

  Douglas describes the New Haven center, the two Connecticut statutes and the convictions, and holds that a physician and a clinic director convicted as accessories may raise the rights of the married couples they served.

• Not Lochner

  Douglas refuses to sit as a super-legislature over economic and social laws, then points to Pierce, Meyer and the association cases as rights protected though not named in the Constitution.

• Penumbras and zones of privacy

  The First, Third, Fourth, Fifth and Ninth Amendments each protect aspects of privacy; together they form a zone into which a law forbidding use of contraceptives by married couples intrudes with maximum destructive impact.

• Goldberg: the Ninth Amendment

  Goldberg argues that the Ninth Amendment shows the Framers did not intend the listed rights to be exhaustive, and that judges should look to the traditions and conscience of the people to identify fundamental rights.

• Harlan: due process on its own terms

  Harlan rejects tying the Due Process Clause to the specific guarantees of the Bill of Rights, and argues that judicial restraint comes from respect for history, basic values, federalism and the separation of powers.

• Black's dissent

  Black distinguishes protected speech from the clinic's conduct, objects to privacy as a broad substitute for the Fourth Amendment's specific words, and holds that government may act unless a specific provision forbids it.

• Stewart's dissent

  Stewart calls the law silly and unwise, goes through each amendment the Court cites and finds none violated, dismisses the Ninth Amendment argument as contrary to its history, and leaves repeal to the people of Connecticut.

Characters

• Estelle Griswold, appellant

  Executive director of the Planned Parenthood League of Connecticut, convicted as an accessory.

• Dr. C. Lee Buxton, appellant

  Yale obstetrics professor and medical director of the New Haven center, also convicted as an accessory.

• Justice William O. Douglas, author of the opinion of the Court

  Found a right of marital privacy in the penumbras of several guarantees of the Bill of Rights.

• Justice Arthur J. Goldberg, concurring

  Wrote for three justices that the Ninth Amendment confirms the existence of unenumerated fundamental rights.

• Justice John Marshall Harlan, concurring in the judgment

  Grounded the result in the liberty of the Due Process Clause as informed by history and tradition.

• Justice Hugo L. Black, dissenter

  Held that judges may strike down laws only under specific constitutional provisions.

• Justice Potter Stewart, dissenter

  Called the statute silly but found it constitutional, leaving its fate to the legislature.

Lessons

• Rights named and unnamed

  The central dispute is whether the Constitution protects rights that its text does not mention. Douglas finds such rights in the shadows cast by named guarantees, Goldberg in the Ninth Amendment, and Harlan in the concept of ordered liberty. Black and Stewart answer that judges have no warrant to protect what the text does not specify, and that unnamed rights belong to the political process.

  • Which earlier cases does Douglas cite as protecting rights not named in the Constitution?
  • How does Goldberg read the Ninth Amendment, and how does Stewart answer him?
  • If the Constitution does not name a right, who should decide whether it exists?

• A foolish law and a constitutional law

  Both dissenters say they dislike the Connecticut statute; Stewart calls it uncommonly silly. Yet they would uphold it, because they distinguish between a law's wisdom and its constitutionality. The case invites students to consider whether that distinction can be maintained and what it requires of judges.

  • Why does Black take care to say that the law offends him as much as it offends the majority?
  • What remedy does Stewart propose for a law he considers unwise?
  • Is it a mark of judicial integrity or of indifference to uphold a law one thinks foolish?

• The shadow of Lochner

  Douglas explicitly declines to follow Lochner v. New York, and Black and Stewart accuse the majority of reviving its method under another name. Harlan answers that restraint comes from history and tradition, not from limiting due process to the Bill of Rights. The exchange shows how the memory of an earlier era shapes later reasoning.

  • Why does Douglas mention Lochner at all?
  • According to Harlan, what keeps judges from roaming at large in the constitutional field?

• Marriage and the home

  Douglas closes by describing marriage as older than the Bill of Rights and intimate to the degree of being sacred, and by asking whether police should search marital bedrooms. All the justices treated marriage as a distinct institution; they disagreed about whether the Constitution gives courts power to shield it from this statute.

  • How does Douglas describe marriage in the final paragraph of his opinion?
  • Why does Douglas stress that the law forbids use rather than manufacture or sale?
  • What does it mean to call a relationship older than the Constitution?

Context

Connecticut's 1879 statute was one of many state laws descended from the federal Comstock Act of 1873. By the 1960s most states had relaxed such laws, but Connecticut's legislature repeatedly declined to repeal its own. The Court's broader development of the incorporation doctrine in the early 1960s, applying Bill of Rights guarantees to the states, formed the backdrop for the justices' debate about how the Fourteenth Amendment protects liberty.

Composition

After the Court dismissed Poe v. Ullman in 1961 on the ground that the law was not enforced, Griswold and Buxton opened their New Haven center deliberately to create a prosecution. Harlan's dissent in Poe, arguing that due process protects a continuum of basic liberties, became the foundation for his concurrence. The case was argued on 29 and 30 March 1965 by Thomas Emerson for the appellants and Joseph Clark for the State.

Reception

The decision quickly became a foundation of the constitutional right of privacy, extended in Eisenstadt v. Baird (1972) and invoked in Roe v. Wade (1973). Its reasoning has been debated ever since: some scholars praise it as recognizing liberties essential to family life, while others, including Robert Bork in his 1987 confirmation hearings, criticized the penumbra method as lacking a basis in the text. The majority in Dobbs (2022) distinguished Griswold from the abortion cases it overruled.

Comparisons

• roe-v-wade

  Eight years later Justice Blackmun relied on the right of privacy recognized in Griswold, among other sources, in striking down Texas's abortion laws.

• dobbs-v-jackson-womens-health-organization

  In overruling Roe, the Court adopted a history-and-tradition test and stated that its holding did not cast doubt on Griswold, a statement debated among the separate opinions.

• lochner-v-new-york

  Douglas disclaimed Lochner's method, while Black and Stewart argued that protecting unnamed rights repeated its error under a different label.

• pierce-v-society-of-sisters

  Douglas cites Pierce, which protected parents' choice of schools, as an example of a liberty the Court has recognized though the Constitution does not name it.

• buck-v-bell

  In 1927 the Court deferred to a state's control over reproduction; in 1965 it protected married couples' decisions against state law.

• the-federalist-papers

  Hamilton's argument in No. 84 that a bill of rights might imply that unlisted rights were surrendered is the concern the Ninth Amendment answered, central to Goldberg's concurrence.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• Douglas's refusal to follow Lochner and his list of earlier cases protecting unnamed rights.
• The words penumbras and emanations and how Douglas uses them.
• Goldberg's quotation of the Ninth Amendment.
• Black's distinction between speech and conduct.
• Stewart's review of each amendment the Court mentions.

Key terms and names

Penumbra

Literally a partial shadow; Douglas's term for the area of protection surrounding an explicit constitutional guarantee.

Ninth Amendment

The amendment providing that the listing of certain rights shall not be construed to deny or disparage others retained by the people.

Standing

The right of a party to bring or defend a legal claim, which ordinarily requires a personal stake in the outcome.

Substantive due process

The doctrine that the Due Process Clause protects certain liberties from government interference regardless of the procedures used.

Incorporation

The application of Bill of Rights guarantees to the states through the Fourteenth Amendment.

Seminar Questions

1. Comprehension What were Griswold and Buxton convicted of, and under which statutes?
2. Comprehension Which amendments does Douglas say create zones of privacy?
3. Comprehension What does Stewart say about the wisdom of the Connecticut law, and why does he still vote to uphold it?
4. Interpretation How do Douglas, Goldberg and Harlan differ in locating the right they protect?
5. Interpretation Why does Black object to replacing the words of the Fourth Amendment with the word privacy?
6. Big Question Should judges protect rights the Constitution does not name, and if so, how can they keep their own preferences out of the decision?

Faith Connections

• Genesis 2:24 (Scripture)

  A man shall leave his father and mother and cleave unto his wife, and they shall be one flesh: the Bible's account of marriage as an institution prior to any civil law, comparable to Douglas's claim that marriage is older than the Bill of Rights.

• Romans 13:1-4 (Scripture)

  Paul's teaching that rulers are ministers of God for good raises the question the dissenters pressed: how far the authority of a lawful legislature extends.

Logic and Rhetoric

Central argument: Douglas reasons that several Bill of Rights guarantees protect aspects of privacy, that together they form a zone covering the marriage relationship, and that a law forbidding married couples' use of contraceptives intrudes on that zone by unnecessarily broad means. Black and Stewart reply that no specific provision is violated and that courts may not invalidate laws on the basis of a general right the text does not state.

Rhetorical device: metaphor. Douglas's image of penumbras formed by emanations (quote 0) gives visual form to the idea that rights extend beyond their literal words, while Black answers with plain, personal speech (quote 4).

Debate: Resolved: that the Constitution protects fundamental rights beyond those it expressly lists.

Memory Work

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to. invade it unless prohibited by some specific constitutional provision.

Writing Prompts

Essay: Compare the three different theories offered by Douglas, Goldberg and Harlan for striking down the Connecticut law, and the two dissenters' objections, and explain which theory best answers the dissenters.

Comparison with Dobbs v. Jackson Women's Health Organization: Explain how the Court in Dobbs used a history-and-tradition test similar to Harlan's in Griswold, and why the Dobbs majority said its holding did not reach Griswold.

Medical Lens

Griswold matters to the history of medical ethics and law because a physician was criminally convicted for advising patients, and the Court held that a doctor could assert his patients' constitutional rights. The opinions debate the boundaries between professional medical advice protected as speech, medical conduct subject to state law, and the privacy of the patient relationship. The record contains no clinical content.

• Opinion of the Court, standing: We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship.

  Douglas holds that a convicted physician and clinic director may assert the rights of the patients they served, an important link between the doctor-patient relationship and constitutional litigation.

  Medical Ethics
• Dissent of Justice Black, paragraph beginning: Had the doctor defendant here, or even the nondoctor defendant, been convicted for doing nothing more than expressing opinions

  Black distinguishes a physician's protected advice from the clinic's examinations and supply of materials, which he treats as conduct the state may punish.

  Medical Ethics

Creative Prompts

• Classroom

  Divide the class into five chambers, one for each opinion in the library text, and have each group present its justice's answer to the question of where a right not named in the Constitution could come from.

• Essay

  Write a short letter from a Connecticut legislator to Justice Stewart in 1965 responding to his suggestion that the people of the state should repeal the law themselves.

• Essay

  Compare Goldberg's reading of the Ninth Amendment with Stewart's, using Hamilton's Federalist No. 84 and Madison's speech introducing the Bill of Rights.

• Dialogue

  Write a conversation between Justices Black and Harlan, long friends who often disagreed, about how judges can avoid imposing their own views.

Further Reading

• Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, David J. Garrow

  A detailed history of the Connecticut birth-control litigation from the 1930s through Griswold and its aftermath.

• The Tempting of America: The Political Seduction of the Law, Robert H. Bork

  A critique of the reasoning in Griswold and related cases from the standpoint of original understanding.

• The Rights Retained by the People: The History and Meaning of the Ninth Amendment, Randy E. Barnett (editor)

  Collected essays on the Ninth Amendment's origins and interpretation, the subject of Goldberg's concurrence.