Griswold v. Connecticut
and the Legal Roots of Legalized Abortion
Although relatively unknown, a 1965 Supreme Court decision, Griswold v. Connecticut, has had a profound impact on American laws and society. The majority opinion in the Griswold decision provided the legal rationale and philosophical foundation for the Court’s subsequent decision in Roe v. Wade (1973) which legalized abortion in all fifty states, invalidated various state laws, and generated an intense nationwide debate which continues today.
Griswold v. Connecticut involved a statute adopted by the state of Connecticut in 1879 which made it illegal for any person to use, or assist in using, any "drug, medicinal article, or instrument for the purpose of preventing conception", even among married couples. The statute was first challenged in 1943 in Tileston v. Ullman where the Supreme Court found that the plaintiff "lacked standing." The statute was later challenged in 1961, in Poe v. Ullman. The Court decided in that case that the controversy was not "ripe" because the plaintiff had not actually been prosecuted for breaking the statute. Then in 1965, suit was initiated by two members of the Planned Parenthood League of Connecticut. Their Executive Director, Estelle Griswold, had been convicted of providing contraceptive information, instruction, and medical advice to a married couple. Her conviction was affirmed by the Supreme Court of Connecticut. The case then went to the U.S. Supreme Court where the Connecticut law and Mrs. Griswold's conviction were ruled unconstitutional by a vote of 7-2, and Connecticut’s law was found to be a violation of the U.S. Constitution.
The Supreme Court justice who wrote the majority opinion in Griswold argued that they had found a new “right of privacy" in the Constitution which could be used to strike down the Connecticut law. Although this so called "right of privacy" could not be found anywhere in the actual text of the Constitution or its amendments, the majority argued that it is "implied" by the words and phrases of other constitutional amendments.
What makes Griswold such a landmark case is the Court's willingness to explicitly justify at length the practice of investing certain un-enumerated rights with full constitutional status. The Court then uses these newly found rights to more or less legislate to the states in later cases such as Roe v. Wade, a job which is specifically reserved by our Constitution to the elected representatives of the people through the U.S. Congress and state legislatures!
Justice Hugo Black was one of only two justices who voted against the majority in Griswold and wrote a passionate dissenting opinion in the case. Although Justice Black believed that the Connecticut law was "offensive" he felt that it was nonetheless constitutional. He strongly believed that any decision to change or abandon the Connecticut law should be made by the Connecticut state legislature. In his Griswold dissent, Justice Black argued that the decision is "dangerous" and may eventually threaten the "tranquillity and stability of the nation." How right he was!
Justice Black argued that a specific right of "privacy", on which the decision was based, cannot be found anywhere in the constitution. Justice Black believed that the decision was a revival of the old and outdated Lochner-era Court philosophy with which the Court strictly controlled the economic activity of the States.
In the 1905 decision Lochner v. New York, the Court used the Due Process Clause of the 14th Amendment to invalidate a New York state economic statute. During the next thirty years, known as the “Lochner era", this philosophy was used by the Court to invalidate a number of existing state and federal economic laws. Lochner was finally abandoned by the Court in 1937 in the West Coast Hotel v. Parrish decision.
Shortly before the West Coast Hotel decision, President Franklin D. Roosevelt had announced a plan to pack the Supreme Court with justices “more supportive” of his New Deal economic plans. Roosevelt was putting pressure on the Court to get out of the legislative business and stick to making decisions based on the actual text of the Constitution. He believed that the Lochner Court philosophy had played a role in creating the Great Depression which he was committed to ending. Under pressure from Roosevelt, the Court rejected their Lochner philosophy in the West Coast Hotel decision, and began allowing state legislatures and the Congress to make economic decisions.
Justice William Douglas, writing for the majority in Griswold, argued that the Connecticut statute was unconstitutional because it infringed on an “implied constitutional right of privacy." He denied that his argument was based on the Due Process clause of the 14th Amendment. He also mentioned Lochner, and argued that the Court was not reviving that old Court philosophy. Although the right of privacy is not explicitly mentioned anywhere in the constitution, Douglas argued, the right was "implicit in or peripheral to" other express guaranteed rights of the Bill of Rights. Douglas argued that specific guarantees in the Bill of Rights have “penumbras formed by emanations from those guarantees that help give them life and substance." Douglas reasoned that the 3rd, 4th, 5th, and 9th Amendments imply "zones of privacy" that form a basis for the general right of privacy recognized by this decision.
Justices Harlan and White voted with the majority and wrote concurring opinions in which they argued that the Griswold should have been based on the Due Process clause of the 14th Amendment, just as Lochner. Justice Goldberg also voted with the majority but argued in his concurring opinion that the language of the 9th Amendment was "sufficiently broad to cover all essential rights."
Justice Hugo Black's Dissent
In Justice Black's passionate four paragraph dissent, he made it clear that although he did not personally support the Connecticut law prohibiting contraceptive distribution and use, he knew of no constitutional provision against it. Black believed that the Court did not have the authority to strike down the Connecticut statute. Black felt that the Griswold decision was a revival of the old Lochner philosophy but in the social, not economic, arena. Black believed the decision to be "dangerous" to the "tranquillity and stability of the nation."
In the first paragraph of Black's dissent, he stated that the Connecticut law was "every bit as offensive" to him as to the other Justices. He denied, however, that the law infringed upon any fundamental "constitutional right of privacy." He agreed that there are constitutional provisions designed to protect privacy "at certain times and places with respect to certain activities." But, in his view, it "belittled" the Amendments to talk about them as though they only dealt with privacy. Black warned that substituting the crucial words of a "constitutional guarantee" can "dilute" or "expand" the right it was originally intended to protect. Justice Black believed that the word "privacy" was being used for that purpose in this case. Privacy, he said, is a "broad, abstract and ambiguous concept...which can be easily interpreted as a constitutional ban against many things... 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."
Black then argued against the Court’s use of the Lochner philosophy or the Due Process Clause of the 14th Amendment. Black reminds the Court that Lochner, with an "arbitrary and capricious or shocking to the conscious formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening , many people thought, the tranquillity and stability of the Nation." Black warns, "that formula is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I thought we had laid that formula, as a means of striking down state legislation, to rest."
In the 2nd paragraph of Black's dissent he agues against the opinions of Justices Harlan, White, and Goldberg. Black argued against the assertion that the Due Process clause of the 14th Amendment or any other clause should have been used as the foundation of the decision. Black also argued against Justice Goldberg's assertion that the 9th Amendment should have been the basis. Black believed that whether you use the 14th or the 9th to invalidate the Connecticut law, the result was more or less the same thing: "merely using different words to claim the power to invalidate any legislative act which the judges find irrational, unreasonable, or offensive." He went on to emphasize that the power to make these kinds of decisions rests with the legislative body (Congress), not the U.S. Supreme Court. Justice Black stated: "I do not believe that we are granted power to measure constitutionality by our belief that the legislation is arbitrary, capricious, or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of civilized standards of conduct." Black then reminds the majority that their line of reasoning sounds very similar to that used in the Lochner decision, which was eventually abandoned by the Court in 1937.
In the 3rd paragraph of Black’s dissent, he warns that the 9th Amendment and Due Process Clause arguments of the majority "can be used by this Court as authority to strike down all state legislation which this Court thinks violates fundamental principles of liberty and justice, or is contrary to the traditions and collective conscience of our people." Black argues that judges cannot possibly disregard their own "personal and private notions" when making these decisions. In a statement which summarizes his primary argument, Black warns that "The Framers did not give this Court veto powers over lawmaking. Nor does anything in the history of the (9th) Amendment offer support for such a shocking doctrine." Black pointed out that in the entire 150 year history of the 9th Amendment, no serious suggestion had ever been made before that it could be used "as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern."
Black begins his fourth and final paragraph by attacking the Court's idea that they have a "duty" to "keep the Constitution in tune with the time." He reminds the Court that "the Constitution makers knew the need for change and provided it through the amendment process." In Black's view, a general right of "privacy", rooted in "implied rights" not specific constitutional authorization, represented an arbitrary exercise of judicial power that threatens the American system of government. There are specific rights mentioned in the Constitution, such as the right "of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures (4th Amendment)," but all these rights are specifically mentioned. Black concludes his dissent by once again emphasizing that in his opinion the Connecticut law is not forbidden by any provision of the United States Constitution.
Analysis and Criticism of the Griswold Decision
The philosophy espoused in Griswold is almost identical and is just as offensive as the abandoned Lochner philosophy. The Court is now beginning to move towards legislating to America in social matters. Critics of substantive due process have argued that the Court has used this clause to set itself up as a "super legislature," thereby violating the Founder's intent to have three distinct and separate powers of government.
There was clearly no specific constitutional prohibition against the Connecticut statute. The majority in this case attempted to exercise a degree of power which they are not authorized by the Constitution. Although the Connecticut law was old, outdated, impractical, and should have been abandoned (in my opinion), the people of Connecticut should have made that decision by voting against it directly or by electing a legislature who would remove it. The citizens of Connecticut should also have a right to keep the law if they so desire. If Mrs. Griswold did not agree with the law, she had the right to leave the state, to choose another line of work, or to accept the consequences of breaking the law.
The U.S. Constitution is the supreme law of the land. All branches of government, executive, legislative, and judicial, are subject to it. If one branch can subjectively interpret the Constitution and make decisions which invalidate those made by the other branches of government, then that one branch has given itself the authority of a king. The Supreme Court has claimed that much power today.
The Supreme Court of the United States has a responsibility to use the explicit language, and a common sense interpretation of the words of the Constitution and its amendments to arbitrate American cases. The Court does not have a right to use personal ideas, values and philosophical interpretations to make legislative decisions. In Justice Black's dissent, he publicly warned of the "dangers" of a system of government in which one branch, the judicial, has too much power. Justice Black died in 1971, just 2 years before the Court used the "privacy" doctrine and "substantive due process" to legalize abortion in America in the 1973 Roe v. Wade decision. The decision to legalize abortion and invalidate laws in all 50 states was not made by the people of the United States through their elected representatives. The decision was made by a majority of only 9 justices who are appointed for life, were not elected by the people, and are not responsible for their decisions to anyone including the Congress and President.
Since 1973 over 35 million abortions have been performed in America, and the nation remains divided on the issue. Under our current system of government, the Court could theoretically use their interpretation of the words of the Constitution to mandate almost anything to the states, decisions made by only 5 men but affecting millions of Americans. Although the Court has recently made several decisions in favor of state abortion regulation, this trend could change at any time with the appointment of liberal justices.
The Supreme Court truly represents a "clear and present danger" today. The Court possesses an unprecedented amount of federal power which threatens the lives of unborn children, the very young, the elderly, and those who have a "low quality of life" if they apply the same doctrine to euthanasia.
The only way to prevent the Court from making more laws in the future is to pass a constitutional Amendment which prohibits the practice, such as the following:
"A U.S. Supreme Court decision which invalidates any state or federal law, for which the law does not violate any specific right of the text of this Constitution or its Amendments, may be overturned by a 2/3rds majority vote of the legislative body from which the statute originated."