Griswold v. Connecticut: 1964

Appellants: Charles Lee Buxton and Estelle Griswold
Defendant: State of Connecticut
Appellants Claim: That Connecticut's birth-control laws violated its citizens' constitutional rights
Chief Defense Lawyer: Joseph B. Clark
Chief Lawyers for Appellants: Tom Emerson, Fowler Harper, Harriet Pilpel, and Catherine Roraback
Justices: Hugo L. Black, William J. Brennan, Jr., Tom C. Clark, William Douglas, Arthur J. Goldberg, John M. Harlan, Potter Stewart, Earl Warren, and Byron R. White
Place: Washington, D.C.
Date of Decision: May 11, 1964
Decision: Reversed Griswold's and Buxton's lower court convictions for providing contraceptive information to married couples and struck down all state laws forbidding the use of contraceptives by such couples

SIGNIFICANCE: The decision articulated a constitutional "right to privacy," which would later be interpreted as protecting the right of unmarried persons to use birth control (Eisenstadt v. Baird, 1972) and the right of women to terminate their pregnancies (Roe v. Wade, 1973).

Connecticut's anticontraceptive law, passed in 1879, was simple and unambiguous:

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. (General Statutes of Connecticut, Section 53-32.)

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. (Section 54-196.)

The Planned Parenthood League of Connecticut first brought the law before the U.S. Supreme Court in 1942, with a physician as plaintiff. The court ruled that the doctor lacked standing to sue, since his patients—and not he—suffered injury due to his inability to legally prescribe birth control. In June 1961, declining to rule in a suit brought by several women, the Supreme Court called the normally unenforced law "dead words" and "harmless empty shadows." Estelle T. Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C. Led Buxton, chairman of Yale University's obstetrics department, decided to test the "death" of the 1879 law: On November 1, 1961, they opened a birth-control clinic in New Haven. Dr. Buxton cited the June decision and explained to the press: "This leads me to believe that all doctors in Connecticut may now prescribe child spacing techniques to married women when it is medically indicated."

1879 Law Alive and Well

Griswold and Buxton were arrested and their center closed on November 10, 1961. On December 8, 1961, the opening day of the Sixth Circuit Court trial, defense attorney Catherine G. Roraback argued that Connecticut's birth-control law violated their clients' constitutional right to freedom of speech. Judge J. Robert Lacey, saying he wished to study the defense's brief, continued the case indefinitely.

On January 2, 1962, the trial took place. It lasted only six hours. Julius Martez was the Sixth Circuit Court prosecutor who had requested warrants for Griswold's and Buxton's arrests. He now called his witnesses. John A. Blasi, a New Haven police detective who had entered the clinic on its third day of operation, testified that six women were in the waiting room at the time; that Estelle Griswold freely told him that the facility was, indeed, a birth-control clinic; and that Griswold had offered him contraceptive information and devices. Another detective offered similar testimony.

Dr. Buxton testified that he and his medical colleagues believed that "this type of advice" played a crucial part in women's health care.

Prosecutor Martez said that Griswold and Buxton had broken the law and that the Connecticut legislature, not the court, was the proper forum for anyone objecting to the 82-year-old statute.

Judge Lacey agreed with Martez. He described the statute as "absolute," and he emphasized that it had been upheld three times by the Connecticut Supreme Court of Errors. Rejecting defense attorney Catherine Roraback's free speech argument, he characterized the prohibition of a physician's prescription of birth-control devices as a "constitutional exercise of the police powers of the State of Connecticut." Griswold and Buxton were then convicted of violating Connecticut's birth control law, and each was fined $100.00.

Ten days later, defense attorneys Roraback and Harriet Pilpel filed their clients' appeal with the Appellate Division of the Sixth Connecticut Circuit Court. A three-judge panel heard the case October 19, 1962, and upheld Griswold's and Buxton's convictions on January 18, 1963. However, citing questions "of great public importance," it certified the case for a review by the State Supreme Court of Errors.

That court upheld the convictions on May 11, 1964. Associate Justice John Comley's opinion declared: "We adhere to the principle that courts may not interfere with the exercise by a state of the police power to conserve the public safety and welfare, including health and morals."

On to the Supreme Court

The first action Planned Parenthood took in preparing Griswold v. Connecticut for the U.S. Supreme Court was to replace its female attorneys, Roraback and Pilpel, with two male attorneys: Fowler Harper and, upon his death, Thomas I. Emerson, both professors at Yale Law School.

Oral argument began before the Supreme Court on March 29, 1964. Emerson argued that Connecticut's birth-control law deprived his clients and their clinic's patients of the First Amendment right to free speech and of their right to liberty, which according to the Fourteenth Amendment, could not be abridged without "due process of law." Moreover, he claimed that his clients had a right to privacy, which was guaranteed by the Ninth Amendment to the Constitution: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Emerson characterized the Connecticut law as an effort to erect "a principle of morality" by declaring it "immoral to use contraceptives even within the married relationship." This was, he continued, a "moral judgment" that did not "conform to current community standards."

Both Emerson and Connecticut's attorney, Thomas Clark, were questioned about the presumed "under-the-counter" availability of birth-control devices in Connecticut. Clark classified it with clandestine bookmaking on racehorses—available, but not in the open. Emerson said the devices were simply termed "feminine hygiene" items. Clark was then asked whether it was permissible to prescribe contraceptives to prevent the spread of disease. Clark called this a "ludicrous argument" and explained that sexually transmitted disease was not present in married couples, who were claimed as clients of the Planned Parenthood clinic. As the New York Times summarized Clark's reasoning, "Connecticut requires applicants for marriage licenses to take venereal disease tests, and … Connecticut also has laws against fornication and adultery. Thus, [Clark] indicated, there would be no reason to believe that any such disease would spread."

The next day, Justice Potter Stewart asked Clark to explain the purpose of the statute. "To reduce the chances of immorality," he said. "To act as a deterrent to sexual intercourse outside marriage."

Justice Stewart replied, "The trouble with that argument is that on this record it [the clinic] involves only married women."

A little later in the questioning, Clark declared that Connecticut had the right to guarantee its own "continuity" by prohibiting contraceptives.

Justice Arthur J. Goldberg returned to the statute's alleged role in preventing intercourse outside of marriage, and he asked why Connecticut's laws banning fornication and adultery were not sufficient. Clark replied that "it's easier to control the problem" with the addition of anti-birth control laws.

Decision Reverses Convictions

The Supreme Court, in a 7-2 ruling, reversed Griswold's and Buxton's convictions, invalidated the 1879 law, and enunciated a constitutional "right to privacy." The majority opinion, written by Justice William 0. Douglas, declared that the "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance" and cited the Constitution's First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Ninth Amendment, Douglas quoted in its entirety: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The enforcement of the Connecticut birth-control law would require gross violation of privacy, which was presumably a right "retained by the people." "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" Douglas asked. He characterized such action as "repulsive to the notions of privacy surrounding the marriage relationship" and reversed the lower court convictions.

Justices Black and Stewart issued dissenting opinions. Black wrote:

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not.… I cannot rely on the Due Process Clause [of the Fourteenth Amendment] or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law.

Griswold, Applied Outside the Marital Bedroom

Before Griswold, the Ninth Amendment had usually been interpreted as reserving to the state government any right not specifically granted to the federal government; Douglas' literal interpretation, that the Ninth Amendment reserved such rights to the people, formed the basis of two other successful challenges to state reproduction laws.

In Eisenstadt v. Baird (1972), single people won the right to purchase and use contraceptives. Justice William J. Brennan, a concurring justice in Griswold, delivered the majority opinion:

If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

The following year, in its controversial Roe v. Wade (see separate entry) decision, the Court held that the "right of privacy … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

—Kathryn Cullen-DuPont

Suggestions for Further Reading

Carey, Eve and Kathleen Willert Peratis. Woman and the Law. Skokie, Ill.: National Textbook Co. in conjunction with the American Civil Liberties Union, New York, 1977.

Countryman, Vern, ed. The Douglas Opinions. New York: Random House, 1977.

Cushman, Robert F. Cases in Constitutional Law, 6th ed. Englewood Cliffs, N.J.: Prentice Hall, 1984.

Davis, Flora. Moving the Mountain: The Women's Movement in America Since 1960. New York: Simon & Schuster, 1991.

Faux, Marian. Roe v. Wade. New York: Macmillan Co., 1988.

The New York Times. October 27, 1961; November 3, 1961; November 4, 1961; November 11, 1961; November 13, 1961; November 25, 1961; December 2, 1961; December 9, 1961; January 3, 1962; January 13, 1962; October 20, 1962; January 18, 1963; May 17, 1963; May 19, 1963; May 12, 1964; December 9, 1964; March 30, 1965; March 31, 1965; June 8, 1965; June 9, 1965; June 10, 1965; June 13, 1965; and June 15, 1965.