-Submitted by David Drumm (Nal), Guest Blogger
Considering the recent and ongoing opposition of many Republicans to contraception, a review of this landmark 7-2 Supreme Court decision was conceived. The case involved a Connecticut law that prohibited the use of contraceptives by married couples. The Appellants were Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, a licensed physician and professor at the Yale Medical School, who served as Medical Director for the League at its Center in New Haven.
The appellants were found guilty as accessories and fined $100 each. An intermediate appeals court and the supreme Connecticut court affirmed.
The Connecticut statute in question had been enacted in 1879 (and originally written by P.T. Barnum, of circus fame) 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.
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 Court held that the Connecticut statute violates the right of marital privacy.
In writing for the majority, Justice Douglas notes many rights, and their associated Supreme Court cases, that aren’t enumerated in the Constitution or the Bill of Rights. The freedom of speech and press also includes the freedom to read, the freedom to distribute, the right to receive, and freedom of thought.
The freedom of association, the right to educate one’s children as one chooses, the choice of private or public schooling for your children, freedom to read, all “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Justice Douglas goes on to reference aspects of the First, Third, Fourth, Fifth, and Ninth Amendments whose penumbra create a zone of privacy. In Snyder v. Massachusetts, Justice Cardozo wrote that there are “some principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The right to privacy is such a fundamental right. So fundamental as not to require enumeration.
The dissenters, even though they found the Connecticut law offensive and silly, could not find any constitutional provision that would prevent the government from abridging the “privacy” of individuals. Justice Black wrote: “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.”
This is the very attitude that James Madison warned about in addressing the Ninth Amendment:
It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.
If the Ninth Amendment has any effect at all, it is to protect the most basic and fundamental rights not explicitly guaranteed in the other eight.