June 7, 1965: A huge win today for both privacy and contraception ! Ninety-two years after the war on birth control began when Congress passed the Comstock Act, declaring contraceptive devices and information about them to be obscene, unmailable articles, and states soon enacted their own total bans, Connecticut’s 1879 statute outlawing birth control has been declared unconstitutional by the U.S. Supreme Court in the case of Griswold v. Connecticut (381 U.S. 479).
The struggle to decriminalize birth control has been a long and difficult one, initially battling censorship of literature, then enduring clinic raids, arrests and jail sentences for early birth control advocates. But thanks to vigorous and persistent efforts to drum up public support for re-legalization, plus some favorable state and Federal court decisions, access to birth control has been gradually expanded over the past five decades.
The first favorable court ruling was the “Crane Decision” in 1918 (118 N.E. 637). Though Judge Frederick Crane of the New York State Court of Appeals upheld Section 1142 of the New York State Penal Code, making distribution of birth control devices and information a crime, he ruled that Section 1145 required an exception to be made so licensed physicians in the state could prescribe contraception to their married patients – though the burden of proof was on the doctor to show that it was medically necessary “for the prevention or cure of disease.” This clearly legalized condoms, and other methods of birth control could be legal as well if it could be shown that a pregnancy would endanger a woman’s health. This loophole led to the establishment of the first legal birth control clinic in the U.S. in 1923. (Of course, even that clinic, the Birth Control Clinical Research Bureau, underwent a raid in 1929, though all defendants were acquitted, and it was the last such raid in New York State.)
In 1936, a Federal Appeals Court dealt a blow to the Comstock Act by upholding the right of doctors to receive contraceptives through the mails, but as in the Crane Decision, only if the items were to protect the health of their patients (U.S. vs. One Package of Japanese Pessaries, 86 F. 2d 737). However, despite these rulings, as well as the liberalization of birth control laws in Colorado, Indiana, Kansas and Minnesota, plus overwhelming public support for legalization, restrictions still remained.
Ten states permit distribution of contraceptives only by physicians and pharmacists. Nine states prohibit the advertising of contraceptives, and even the distribution of certain types of birth control information. Eight more states have varying degrees of restrictions. But now that Connecticut’s outright ban on birth control has been struck down, Massachusetts remains the only state where contraceptives are totally outlawed. These remaining laws are now presumed to be unconstitutional, at least as they apply to married couples, who now have an established right to contraceptive information and devices.
The final prosecution of birth control clinic operators began when Estelle Griswold and Dr. C. Lee Buxton opened a clinic in New Haven, Connecticut, on November 1, 1961, to openly challenge the law. They were arrested nine days later, then convicted and fined for giving “information and medical advice to married persons as to the means of preventing conception.”
Connecticut law states that: “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 for not less than sixty days nor more than one year or be both fined and imprisoned.” Though Griswold and Buxton’s clinic gave out only advice, and not birth control devices themselves, the law also states that: “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.”
What makes this case significant to more than birth control is that in overturning the convictions, Justice William O. Douglas, writing for the 7-2 majority, said: ” … specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”
Therefore the Connecticut statute was invalid because it violated what is now an established right of privacy:
“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 of having a maximum destructive impact upon that relationship. Such a law cannot stand in the 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.’
“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 married relationship. We deal with a right of privacy older than the Bill of Rights – older than political parties, older than our school system. Marriage is a coming together for better or 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.”
Though a major battle has been won, the right of unmarried individuals to use birth control and have access to contraceptive information has not been settled by this case. And the forces opposed to birth control will certainly not give up, so though we should celebrate today’s landmark victory, a battle to retain all the rights won today can be expected, and the struggle to defend them could go on as long as the struggle to win them.
PHOTO: Justice William O. Douglas, appointed by President Franklin D. Roosevelt to fill a vacancy left by the retirement of Justice Louis Brandeis. Justice Douglas has served as an Associate Justice since April 17, 1939.