Dr. Jillian T. Weiss

Undoing Griswold: Rick Santorum's America

Filed By Dr. Jillian T. Weiss | February 17, 2012 2:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: contraception, contraceptives, Rick Santorum, right of privacy

Foster Friess, a prominent backer of Republican presidential candidate Rick Santorum, raised eyebrows Thursday when he offered up his own idea for a possible contraceptive method: "This contraceptive thing, my gosh, it's so... inexpensive. Back in my days, they used Bayer aspirin for contraceptives." Foster Friess.jpg

Friess's implication is that if women hold aspirin between their legs, they won't open them.

"The gals put it between their knees, and it wasn't that costly," he told MSNBC's Andrea Mitchell.

This report, and the video that accompanied it, have been at the top of the news yesterday and today.

The last time that contraception was illegal in the United States was 1965, immediately prior to the United States Supreme Court decision in the case of Griswold v. Connecticut.

This case, which is studied by every law student, is the basis for the Constitutional principle that the Bill of Rights safeguards the right of privacy of the people, whether or not the specific details of that privacy are explicitly illustrated in the Bill of Rights. Griswold is the basis for, among others, Roe v. Wade, which declared that it cannot be made a crime for a woman to exercise a right of privacy over her body to make decisions regarding whether to give birth or have an abortion, Katz v. United States, which declared that government agents do not have a right to invade a person's privacy using electronic surveillance, even in a place open to the public, for purposes of charging them with a crime. and Lawrence v. Texas, which declared that it cannot be made a crime for a person to exercise a right of privacy over his or her intimate relationships to decide whether to engage in a relationship with a person of the same sex.

Rick Santorum, and a certain segment of the extreme right wing of the Republican Party, want to undo all that. It is worth re-reading the ringing words of Justice William O. Douglas, writing for the majority of the Supreme Court in the case of Griswold v. Connecticut, so that we understand and remember the nature of the freedoms we gained on a warm summer day in June, 1965, and so that we understand and remember what it would mean to lose those freedoms on a cold winter's day in January, 2013.

For those of you not used to the legal style of writing, note that each mention of a case, such as Pierce v. Society of Sisters, as dry and unpoetic as it may seem, with its recitation of the numbers of the volumes of Supreme Court precedents in which each may be found, represents a person whose life, liberty or property were taken away by the State, and that the attitudes held by Rick Santorum and his ilk, as ridiculous and laughable as they may seem to you, are being seriously discussed and considered, and that you are the target.

381 U.S. 479
Decided June 7, 1965


MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven -- a center open and operating from November 1 to November 10, 1961, when appellants were arrested.

They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.

The statutes whose constitutionality is involved in this appeal are ยงยง 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

Section 54-196 provides:

"Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender."

The appellants were found guilty as accessories and fined $100 each, against the claim that the accessory statute, as so applied, violated the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed. The Supreme Court of Errors affirmed that judgment. 151 Conn. 544, 200 A.2d 479. We noted probable jurisdiction. 379 U.S. 926.

* * *

We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra [right to attend private school], the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra [right to teach German language], the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143 [right to distribute literature]) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U. S. 183, 344 U. S. 195 [loyalty oaths]) -- indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 249-250, 354 U. S. 261-263 [subversive acts statute]; Barenblatt v. United States, 360 U. S. 109, 360 U. S. 112 [House Un-American Activities Committee]; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 369 [loyalty oath requirements]. Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462, we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid

"as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association."


In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense, but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U. S. 415, 371 U. S. 430-431 [law prohibiting impact litigation]. In Schware v. Board of Bar Examiners, 353 U. S. 232 [prohibiting Communists from being lawyers], we held it not permissible to bar a lawyer from practice because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" (id. at 353 U. S. 244), and was not action of a kind proving bad moral character. Id. at 353 U. S. 245-246.

Those cases involved more than the "right of assembly" -- a right that extends to all, irrespective of their race or ideology. De Jonge v. Oregon, 299 U. S. 353 [crime to organize Communist party]. The right of "association," like the right of belief (Board of Education v. Barnette, 319 U. S. 624 [forcing students to salute flag and recite Pledge]), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion, and, while it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.

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. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion) [ban on contraceptives]. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 116 U. S. 630 [compulsory government inspection of papers], as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." We recently referred in Mapp v. Ohio, 367 U. S. 643, 367 U. S. 656 [use of illegally seized evidence in court], to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully an particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).

We have had many controversies over these penumbral rights of "privacy and repose." See, e.g., Breard v. Alexandria [right to solicit sales without a license], 341 U. S. 622, 341 U. S. 626, 341 U. S. 644; Public Utilities Comm'n v. Pollak, 343 U. S. 451 [right of train passengers to be free of noise]; Monroe v. Pape, 365 U. S. 167 [family stripped naked by police in their home]; Lanza v. New York, 370 U. S. 139 [refusal to answer intrusive questions]; Frank v. Maryland, 359 U. S. 360 [health inspectors demanding home access]; Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541 [sterilization of criminals]. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a

"governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."

NAACP v. Alabama, 377 U. S. 288, 377 U. S. 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage 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. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.


*Text edits represented by brackets and stars.

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