Griswold V. Connecticut: Birth Control and the Constitutional Right of Privacy.

Vol. 15 No.3 (March 2005), pp.246-249

GRISWOLD V. CONNECTICUT: BIRTH CONTROL AND THE CONSTITUTIONAL RIGHT OF PRIVACY, by John W. Johnson. Lawrence: University Press of Kansas, 2005. 272pp. Cloth $35.00. ISBN: 0-7006-1377-3. Paper $15.95. ISBN: 0-7006-1378-1.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile@mtsu.edu.

Few twentieth century cases were more consequential or controversial than GRISWOLD v. CONNECTICUT, the 1965 case in which the Court majority, led by Justice William O. Douglas, invalidated a Connecticut birth-control law on the basis of a “right to privacy.” The decision served as the foundation for the Supreme Court’s decision in ROE v. WADE (1973) and subsequent cases liberalizing most state abortion laws. Today, those who seek to strike down sodomy laws, legitimize gay marriage, or create a “right to die” continue to evoke GRISWOLD and the right to privacy it affirmed.

On the year marking the fortieth anniversary of the opinion, historian John Johnson provides a highly readable account of GRISWOLD that, like Anthony Lewis’s classic account of GIDEON v. WAINWRIGHT (1963) in GIDEON’S TRUMPET (1964), would be suitable for introductory American government or law classes. The work is also valuable to constitutional scholars with an interest in exploring the area of privacy in greater depth, albeit without the detail of longer works like David J. Garrow’s, LIBERTY AND SEXUALITY: THE MAKING OF ROE v. WADE (1994).

Johnson sometimes states the obvious, as when he observes that “commentary on Supreme Court decisions regularly finds its way into the pages of legal periodicals, generally called ‘law review’ or ‘law journals’” (p.190), but most scholars will accept such comments as part of the author’s attempt to appeal to dual audiences. Less satisfactory is the publisher’s decision (apparently consistent with the larger series of which it is a part), to omit all footnotes or endnotes. Although Johnson compensates in part by referring by name to court decisions and by including a useful bibliographic essay that covers both primary and secondary materials, he might have further helped by identifying more scholars by name in the text, as where he cites “one legal historian” (p.61), or where he refers to “one expert” (p.222).

Johnson provides good descriptions of the 1879 Comstock law, of early attempts by Justice Louis Brandeis and others to gain recognition for a right to privacy, of the major participants in the case, of the recurring but unsuccessful attempts to get the Connecticut legislature to repeal the birth control laws, and of prior cases that had reached the Court both in regard to privacy in general and birth control in particular. Johnson reminds readers that while it was illegal for doctors to prescribe birth control in Connecticut, it was not illegal for pharmacies to sell condoms, which [*247] were classified as disease-prevention, rather than as birth-control devices. Similarly, while prohibiting doctors from prescribing birth control, Connecticut allowed for abortion to preserve the life of the mother (p.111).

One of the fascinating aspects of this book is its treatment of Supreme Court clerks. Chief Justice Earl Warren’s clerk, John Hart Ely, who later became a noted legal scholar, confidently scoffed at the idea of a constitutional right to privacy while suggesting that the Court might be able to overturn the law on equal protection grounds or on the argument that it was not tightly drawn (p.154). At one point, he wrote that “I do not think the Court should enforce clauses which are not there” (p.136). Justice Douglas, who thought that clerks should be seen and not heard, barely heeded his clerks. Paul Posner, Justice Brennan’s clerk, helped persuade Brennan, who used his clerks to garner information from the chambers of other justices, that Douglas’ initial draft needed further work, while current Supreme Court Justice Stephen Breyer, then clerking for Justice Goldberg, prepared much of the research on the Ninth Amendment as well as the first draft of Goldberg’s concurring opinion (p.170).

Perhaps because Johnson traces the developments of the right to privacy in previous cases, and even prior mentions of “penumbras,” the description of the actual decision in GRISWOLD v. CONNECTICUT is almost anticlimactic. To this reviewer, at least, the analysis in BOYD v. U.S. (1886) with its reference to “the sanctity of a man’s home and the privacies of live,” and concerns about “the invasion of his indefeasible right to personal security, personal liberty and private property” (quoted by Johnson, p.63) seems much more forthright than Douglas’ own reference to a mishmash of amendments that might bear some relation to privacy.

Douglas’ majority opinion in GRISWOLD rests on the idea that the provisions of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments had “emanations” that cast “penumbras” implicating a right to privacy. In concurrences, Justice Harlan advanced the idea, which he had previously introduced in POE v. ULLMAN (1961), that the right to contraception was among the liberties protected by the due process clause of the Fourteenth Amendment, while Justice Goldberg argued that it was implicated by the Ninth Amendment. In dissent, Justices Black and Stewart argued that, however much they valued privacy, they could not find it within the text of the Constitution.

Consistent with a book designed chiefly to explicate rather than to advocate, Johnson explains each position without embracing any of them. After tracing the expansion of the right to privacy to include contraception by non-married couples, the right to abortion, and the right to sodomy, Johnson concludes that “The majority opinion in GRISWOLD . . . remains one of the most idiosyncratic opinions in the two centuries of Supreme Court history. For a decision announcing a major constitutional shift, it is creative but maddeningly cryptic” (p.224). Given such a fragile base, one wonders why the decision is now regarded, as Johnson suggests, through an unnamed scholar, that the confirmation hearings for Robert Bork [*248] and other justices indicate that it is, “as a ‘fixed star in our constitutional firmament,’” a “litmus test for membership in the ‘mainstream of constitutional thought’” (p.222).

Johnson believes that GRISWOLD continues to have implications for the issue of gay civil unions and marriages, but he is not altogether clear as to whether adherence to GRISWOLD requires that such legal arrangements be accepted and suggests that this issue might ultimately be resolved through equal protection, rather than through privacy, analysis. One wonders whether the same scholars, who argue that the expression of public opinion in judicial confirmation hearings has enshrined GRISWOLD as part of the legal mainstream, will pay equal attention to bans that Johnson says thirty-seven states have subsequently enacted, many by popular referenda, on gay marriages. Better yet, how, if at all, can such positions be reconciled? Would it have been possible to formulate a right to privacy, as Chief Justice Warren apparently hoped, that did not justify abortion (p.153), or at least not virtual abortion-on-demand?

Johnson portrays Justice Kennedy’s decision striking down sodomy laws in LAWRENCE v. TEXAS (2003) as more consistent with GRISWOLD than the earlier decision by Justice White in BOWERS v. HARDWICK (1986) upholding such laws, and arguably it is. Johnson mentions Justice Scalia’s dissent in LAWRENCE (p.227), but devotes little attention to the consequences that Scalia believes the decision could have not only for gay marriage but also for plural marriages and other nontraditional arrangements.

Scholars who dismiss warnings of judicial over-inclusiveness by Hugo Black, Potter Stewart, and John Hart Ely, may take comfort in Johnson’s observation that, to date, “Selling narcotics, fixing prices, and planning violent crimes cannot be insulated by a right of privacy; nor can pedophilia, rape, and prostitution” (p.210). Still, one wonders why “fornication and adultery” laws, and laws against prostitution, have not been protected by the right to privacy but sodomy has (pp.210-11). Why is partial-birth abortion protected by the right to privacy, while cruelty to animals is not? One further wonders whether the elusive right identified in GRISWOLD is capable of resolving some of society’s most controversial issues, including the “right to die.” Noting early in the book that the closest the Constitution comes to recognizing privacy is its mention of “private” property, Johnson comments that “[a]ll that needs to be noted at this junction is that it is conceivable that privacy was on the minds of the writers of the Bill of Rights” (p.54). By book’s end, this does not seem like quite enough. Johnson deserves credit for writing a book that identifies some fascinating questions, even if he does not answer them all.

REFERENCES:

Garrow, David J. 1994. LIBERTY AND SEXUALITY: THE MAKING OF ROE v. WADE. New York: Macmillan.

Lewis, Anthony. 1964. GIDEON’S TRUMPET. New York: Random House.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 US 186 (1986). [*249]

BOYD v. U.S., 116 U. S. 616 (1886).

GIDEON v. WAINWRIGHT, 372 US 335 (1963).

GRISWOLD v. CONNECTICUT, 381 US 479 (1965).

LAWRENCE v. TEXAS, 539 US 558 (2003).

POE v. ULLMAN, 367 US 497 (1961).

ROE v. WADE, 410 US 113 (1973).

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