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Griswold v. Connecticut (1965)

In Depth


Estelle Griswold and Lee Buxton, the executive director and the medical director, respectively, of the Planned Parenthood League of Connecticut, were convicted of violating a Connecticut statute barring the use of contraceptives by distributing contraceptives to a married woman. Both an intermediate court of review and the state supreme court affirmed defendants'convictions, rejecting their argument that the statute violated the Due Process Clause of the Fourteenth Amendment. Defendants thereafter appealed to the Supreme Court.

The Statute Under Review

Defendants were found guilty as accessories under the following statutes:

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 both or be fined and imprisoned.

CONN. GEN. STAT. ANN. § 53-32 (1958).

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.

CONN. GEN. STAT. ANN. § 53-196 (1958).

The Court's Holding

By a vote of seven-to-two, the Court struck down the statute barring the use of contraceptives by married persons and threw out defendants' convictions.

The Court's Reasoning

Justice Douglas wrote the opinion for the Court. At the outset of his opinion, Justice Douglas addressed the issue of the defendants' standing to challenge the statute on behalf of third parties (married couples who wanted to use contraceptives) who were not before the Court. Although litigants are not usually allowed to raise the rights of third parties, the Court held that defendants had standing to raise the constitutional rights of married persons with whom they had a professional relationship, noting that "[t]he rights of husband and wife . .. are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them." Griswold, 381 U.S. at481.

Turning to the merits, Justice Douglas derived a "right of privacy" from multiple provisions of the Bill of Rights. Griswold, 381 U.S. at 482-86. The First Amendment, he noted, has been construed to protect "the 'freedom to associate and privacy in one's associations . . . .' " Id at 483 (quoting NAACP v. Alabama, 357 U.S. 449, 462 (1958)). "In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion." Id. Based upon a series of cases interpreting the First Amendment, Justice Douglas wrote said that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Id. at 484. He elaborated:

Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one . . . . The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people tobe secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."


With little further analysis, Justice Douglas determined that the right of married couples to use contraceptives "concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." Griswold, 381 U.S. at485. He emphasized that the law, "in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship." Id. (emphasis in original).Whatever the purposes of § 53-32 might be (and none was identified in Justice Douglas' opinion), the statute was unnecessarily broad in its scope and thereby invaded the protected privacy of married couples. "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 marriage relationship." Id. at 485-86. In a coda to his opinion, which said that the right in question was "older than the Bill ofRights," Justice Douglas penned a paean of praise to the institution of marriage:

Marriage is a coming together for better or for 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 is an association for as noble a purpose as any involved in our prior decisions.

Id. at 486. The defendants' convictions for violating the contraception statute (as accessories) were reversed.

The Concurring And Dissenting Opinions

Justice Goldberg, joined by Chief Justice Warren and Justice Brennan, concurred, but wrote separately to emphasize that the result reached by the majority was supported by a proper understanding of the Ninth Amendment. "The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments." Griswold, 381 U.S. at 488 (Goldberg, J., concurring). "To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and give it no effect whatsoever." Id. at 491.

Justice Goldberg explained that, in determining which rights are "fundamental" for purposes of the Ninth Amendment, judges"must look to the 'traditions and [collective] conscience of our people.'" Griswold, 831 U.S. at 493 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). The right of privacy is a "fundamental personal right," and includes "the right ofprivacy in marriage." Id. at 494, 495. Because the prohibition of the use of contraceptives by married couples infringes upon their privacy rights, it may be upheld only if it narrowly tailored to promote a compelling state interest. Id. at 497-98.The justification offered by the State in support of the statute-to discourage extra-marital relations-was questionable because of the widespread availability of contraceptives to prevent the spread of disease. Id. at 498.Moreover, "the state interest in safeguarding marital fidelity can be served by amore discriminately tailored statute, which does not, like the present one, sweep unnecessarily broadly, reaching far beyond the evil sought to be dealt with and intruding upon the privacy of all married couples." Id (citing state statutes criminalizing adultery and fornication). Justice Goldberg cautioned that theCourt's holding "in no way interferes with a State's proper regulation of sexual promiscuity or misconduct" including"adultery" and "homosexuality." Id. at 498-99.

Justice Harlan concurred in the Court's judgment reversing the defendants' convictions, but not in the reasoning of Justice Douglas' majority opinion. In Justice Harlan's opinion, the case should have been decided on the basis of the liberty language of the Due Process Clause of the Fourteenth Amendment, not on any of the specific guarantees of the Bill of Rights. Griswold, 381U.S. at 499-502 (Harlan, J., concurring in the judgment).The prohibition on the use of contraceptives by married couples infringed "basic values 'implicit in the concept of ordered liberty.' " Id. at 500 (quoting Palko v. Connecticut, 302 U.S.319, 325 (1937)). In determining what "basic values" are"implicit in the concept of ordered liberty," Justice Harlan stated that judges are not free to impose their own personal values. Rather, "[j]udicial self-restraint" in evaluating due process claims " will be achieved in this area . . . only by continual insistence upon respect for the teachings of history, solid recognition of the basis values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms." Id. at 501.

Justice White concurred in the Court's judgment, but not in the majority opinion. Like Justice Harlan, Justice White thought that the case should have been decided on the basis of the liberty language of the Due Process Clause of the Fourteenth Amendment. Griswold, 381 U.S. at 502-07 (White, J., concurring in the judgment).The State statute barring the use of contraceptives by married couples interferes substantially with the "intimacies of the marriage relationship." Id. at 502-03."[I]t forbids all married persons the right to use birth-control devices, regardless of whether their use is dictated by considerations of family planning, . . . or even of life itself." Id. at 503. "The anti-use statute, together with the general aiding and abetting statute, prohibits doctors from affording advice to married persons on proper and effective methods of birth control." Id. (citation omitted). "[T]he clear effect of these statutes, as enforced, is to deny disadvantaged citizens of Connecticut, those without either adequate knowledge or resources to obtain private counseling, access to medical assistance and up-to-date information in respect to proper methods of birth control." Id. (citations omitted). A statute with these effects "bears a substantial burden of justification when attacked under the Fourteenth Amendment." Id. (citations omitted). That burden could not be met by Connecticut's asserted interest in preventing extra-marital sexual relations. Id. at505-07.

Justice Black, joined by Justice Stewart, dissented. Justice Black noted that although there are "guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities," there is no "right of privacy" as such. Griswold, 381 U.S. at 508 (Black, J., dissenting). In an often quoted phrase, Justice Black stated "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." Id. at 510. No such provision prohibited the State from barring the use of contraceptives by married couples.

Justice Black also took issue with the concurring opinions of Justices Goldberg, White and Harlan, basing their concurrences on the Ninth Amendment (Justice Goldberg) and the Due Process Clause of the Fourteenth Amendment (Justices White, Harlan)."[P]roperly construed,"Justice Black wrote, "neither the Due Process Clause nor the Ninth Amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut law." Griswold, 381 U.S. at 511 (Black, J.,dissenting). Justice Harlan's and Justice White's understanding of the Due Process Clause, in Justice Black's view, would allow judges to strike down state laws based upon the individual justices' understanding of "natural justice," an extra-constitutional value. Id. at 511-18. But justices of the Supreme Court are not authorized " to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary." Id. at 511-12. The power to make such decisions "is of course that of a legislature," not a court. Id. at 512.

While . . . our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of 'civilized standards of conduct. 'Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formulate or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination-a power which was specifically denied to federal courts by the convention that framed the Constitution.

Id. at 513. Justice Black agreed that the reasoning of two of the cases on which Justices Harlan and White relied-Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters,268 U.S. 510 (1925)-supported the result in Griswold, but noted that those cases were based upon a "natural law due process philosophy which many later opinions repudiated." Id. at 516.

Justice Black then turned to Justice Goldberg's reliance on the Ninth Amendment. The Ninth Amendment, in Justice Black'sopinion, "was passed not to broaden the powers of this Court,"but . . . to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication." Griswold,381 U.S. at 520 (Black, J., dissenting). The Supreme Court is not vested with the power "to sit as a supervisory agency overacts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies are unreasonable, unwise, arbitrary, capricious or irrational."Id. at 521. Adoption of such a "loose, flexible, uncontrolled standard for holding laws unconstitutional" would "amount to a great unconstitutional shift of power to the courts" which would be "bad for the courts and worse for the country." Id. "Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would . . . jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have." Id.

Justice Stewart, joined by Justice Black, also dissented. Although the Connecticut law was "uncommonly silly," Justice Stewart was unable to conclude that it violated the Constitution. Griswold, 381 U.S. at 527-31 (Stewart, J., dissenting). Justice Stewart found nothing in the First, Third, Fourth, Fifth, Ninth or Fourteenth Amendments that supported theCourt's decision. The Connecticut law did not establish a religion, prohibit the free exercise of religion, abridge the freedom of speech, the right of the people peaceably to assemble or petition the government for a redress of grievances, in violation of the First Amendment. Id. at 529. It did not quarter any soldier in any house, in violation of the Third Amendment, authorize any search or seizure in violation of the Fourth Amendment or compel anyone to be a witness against himself in violation of the Fifth Amendment. Id. The Ninth Amendment is not a source of substantive constitutional rights, but, along with the Tenth Amendment, merely makes clear that "the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States." Id. at 529-30. And the Due Process Clause of the Fourteenth Amendment guarantees procedural, not substantive, due process and ensures against vaguely drafted laws. Id. at 528. There was no claim that the law was vague or that defendants were denied "any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid." Id. The Constitution does not confer a "general right of privacy" and, therefore, the defendants' convictions should have been affirmed. Id. at 530-31.

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