Public Triumphs, Private Rights
Nestled in a grove of trees, about two-thirds of the way up the steep hillock that contains the cemetery of the old Congregational Church in historic Wethersfield, Conn., an unassuming flat headstone marks the grave of Estelle Trebert Griswold, born June 8, 1900, and laid to rest beside her husband, Richard, on August 13, 1981.
Estelle is buried among dozens of kinsmen reaching back many generations, but the family name was enshrined in American history only 40 years ago, on June 7, 1965, when she prevailed in a historic ruling by the United States Supreme Court.
The Griswold v. Connecticut decision protects the right of married women to practice contraception and to secure access to legal and reliable reproductive-health services. It later provided the foundation for expanding privacy protections to encompass abortion. And those are two of the critical protections now endangered by the potential change of just one justice in the U.S. Supreme Court.
The story of Griswold begins in 1961, when Estelle, then executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton of Yale University's Medical School opened a small birth-control clinic in downtown New Haven, Conn. They intended to challenge the validity of the state's official ban on birth control, and indeed, nine days later, they were arrested for dispensing contraceptives to a married couple. A month later they were convicted and fined $100 each.
When their case finally reached the Supreme Court, seven of nine justices agreed that a zone of privacy safeguarding birth control inheres in what Justice William O. Douglas called a "penumbra" (a shaded rim between darkness and light) of the Constitution and the Bill of Rights. (Other justices felt it was covered by protections against search and seizure and other specific rights that could logically be extended to cover marriage.)
In other words, although the Constitution and the Bill of Rights do not explicitly guarantee privacy rights to individuals, such rights are implicit within the documents. The landmark ruling in Griswold v. Connecticut paved the way for Eisenstadt v. Baird, the 1972 Supreme Court decision that extended these same privacy protections -- and thus the right to obtain birth control -- to unmarried women. It opened the door the following year to the historic ruling in Roe v. Wade, which expanded the privacy doctrine to abortion, granting women and their doctors the legal right not just to prevent, but also to terminate, unwanted early pregnancies.
Just two years ago, the Court once again drew upon the Griswold doctrine of privacy, in the 2003 decision Lawrence v. Texas, to protect the right of consensual homosexual relations. With social conservatives again ascendant across the land -- and an intense battle looming over possible Supreme Court vacancies -- Griswold's 40th anniversary this year compels us to remember just how long and hard American progressives have battled to secure reproductive-health rights in this country.
It reminds us, as well, how much is at stake today as conservatives challenge our long-protected freedoms under the rubric of trying to prevent abortions, and hurl allegations of "judicial activism" at judges with whose decisions they disagree.
The Griswold decision overturned an 1879 Connecticut statute that placed broad criminal sanctions on sexual speech and commerce, including all materials related to sexuality, birth control and abortion. It was the last vestige of the long and infamous legacy of Anthony Comstock, a self-appointed moral arbiter whose evangelical fervor had captured Victorian-era politics and left an enduring web of state and federal statutes intended to root out and prohibit behavior that he, and those who embraced his cause, considered obscene or sinful.
Comstock exploited the inevitable tensions of gender, race and class that beset American society during the fast-paced years of industrialization and urbanization following the Civil War, a turbulent era not dissimilar from our own. He not only helped pass laws, but also had himself authorized as a special agent of the U.S. Postal Service, with the power to undertake searches and make arrests.
In his later years, he famously indicted (though failed to convict) birth-control pioneer Margaret Sanger for daring to encourage women to practice family planning. He then framed, arrested and jailed her husband, William, for handing out a pamphlet that provided explicit instructions on various traditional birth-control techniques. A year later, following Comstock's death, Margaret Sanger did serve time in jail for handing out diaphragms to immigrant women -- in a clinic she opened as a direct challenge to New York's Comstock laws.
On appeal, she established the right of doctors in some states to prescribe birth control. Such incidents emboldened Sanger to devote her life to fundamental social change. Over the course of the next 50 years, she built a fledgling coalition of women's-rights advocates, civil libertarians, physicians and social scientists into an enduring family-planning apparatus.
Intent on anchoring law and public policy in rational argument and not religious belief, these courageous women and men overturned much of Comstock's handiwork through incremental victories in courts and legislatures. They were not able, however, to supersede local regulations in Catholic-dominated states, such as Connecticut and Massachusetts.
Despite these constraints, the modern family-planning movement continued to grow. During the 1960s, the birth control pill was successfully marketed by a team of scientists and doctors whom Sanger had encouraged and helped fund. Under President Lyndon Johnson, the federal government incorporated family planning into the nation's domestic antipoverty programs and began to commit the nation's foreign-policy resources -- if only a small fraction -- to international population programs.
When Sanger was past 80 and confined to a nursing home in Tucson, Ariz., she learned of the Supreme Court decision in Griswold v. Connecticut that finally offered universal, constitutional protection for these advances.
What motivated Margaret Sanger and Estelle Griswold was more than a simple desire for freedom in this most private of matters -- the decision of whether or not to bear a child. These pioneers of modern feminism also understood that the ability to plan and space one's family is a necessary condition for women to achieve equality in all walks of life.
Safe and reliable contraception offers women fundamental control over their bodies and their lives. Roe v. Wade, adopted by a comfortable 7-2 majority of the Court, extended privacy protections to early terminations of unwanted pregnancy. In 1992, however, in deciding the Pennsylvania case Planned Parenthood v. Casey, the Court only narrowly (5-4) upheld the core privacy doctrine of Roe -- and at the same time introduced a new standard that has allowed many states to place greater restrictions on abortion, even in the first trimester.
Twenty-four-hour waiting periods and parental-consent laws, for example, have been widely adopted on grounds that they do not constitute what the Court established as "undue burdens," even though for many women they effectively restrict access to abortion procedures.
Considering the close call in Casey, the appointment of just one new conservative justice to the Court could threaten all constitutional protections for abortion -- and perhaps for contraception, as well -- thereby reversing history and sending the responsibility for regulating these practices back to politicians in state legislatures. And that's where the Comstock laws were first created so many years ago.
So much is at stake. Before birth control and abortion were legally and readily available, the average woman would become pregnant between 12 and 15 times in her lifetime. Even today in the United States, nearly half of all pregnancies remain unintended, and nearly half of those result in abortion. This is why polls show that the vast majority of Americans reject the extremism of a determined minority and do not want the Supreme Court decisions that protect their private decisions to be overturned.
Doctrines of privacy and equality for women are simply not separable: Eroding one imperils the other.
And all this rests on the shoulders of just one new justice.