SYMHC Classics: Griswold v. Connecticut

This 2022 episode covers Griswold v. Connecticut, the U.S. supreme court decision that overturned laws banning contraception – at least, for married couples. 

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Episode Transcript

Speaker 1 (00:02):
Happy Saturday. This episode is coming out on the sixtieth
anniversary of the U. S. Supreme Court decision in Griswold
versus Connecticut, which was decided on June seventh, nineteen sixty five.
It overturned a Connecticut law banning contraception and established a
basis for a right to privacy for married couples in
the US. This episode also makes some references to the

(00:25):
right to due process. This is part of the fifth
and fourteenth Amendments to the US Constitution, which both specify
that no person will be deprived of their life, liberty,
or property without due process of law, meaning a fair
hearing or some other type of fair proceeding. So we

(00:45):
would just like to take a moment to note that
this language in both of these amendments applies to persons,
not just to citizens. Everyone has the right to do process,
including immigrants regardless of their immigration status. This episode originally
came out on July twenty seventh, twenty twenty two. Welcome

(01:07):
to Stuff You Missed in History Class, a production of iHeartRadio.
Hello and welcome to the podcast. I'm Tracy B. Wilson
and I'm Holly Frye. I've been circling the idea of
an episode on Griswold versus Connecticut for years. That's the

(01:29):
US Supreme Court decision that overturned law's banning contraception, at
least when it came to married couples. That's connected to
several of our previous episodes as well. But the recent
Supreme Court decision in Dobbs versus Jackson Women's Health Organization
is really what finally propelled it up to the top.
That's the decision that came out just recently which overturned

(01:54):
Roe versus Wade and Planned Parenthood versus Casey. And in
the concurring opinion that he wrote on this case, just
as Claris Thomas wrote, quote, in future cases, we should
reconsider all of this Court's substantive due process precedence, including Griswold,
Lawrence and obergefel So. Substantive due process that's the idea

(02:19):
that courts can protect various rights that aren't specifically named
in the Constitution, and in this case, it's the right
to privacy. Griswold versus Connecticut wasn't the very first Supreme
Court decision ever in the US to mention the right
of a concept of privacy, but it was a major
decision in that regard. I personally always had a lot

(02:40):
of trouble understanding the logic behind the decision of Roe
versus Wade, not the outcome, but like the reasoning of
how they got there, which was essentially the abortion was
also protected under a right to privacy. That logic, though,
makes a lot more sense to me with Griswold versus
Connecticut as background. And then this decision has also mentioned

(03:02):
and a lot of other decisions that came after it,
beyond just the ones that were mentioned in Thomas's concurring opinions.
So that's what we're talking about today. Heads up. Obviously,
we're going to be talking a lot about contraception in
this episode. There's also a bit about abortion and some
things related to pregnancy and birth related trauma. Griswold versus

(03:24):
Connecticut overturned a law that was sometimes described as a
quote little Comstock law that was a nickname for various
state anti obscenity laws that were similar to the Comstock
Act of eighteen seventy three, or more formally known as
an Act for the Suppression of Trade in and Circulation
of Obscene Literature and articles of immoral use. This law

(03:47):
was named for social reformer Anthony Comstock, coincidentally also of Connecticut.
Comstock served in the Union Army during the US Civil War.
His upbringing had been deeply concerned, and during his time
in the army he really disapproved of a lot of
his fellow soldier's behavior, especially things like gambling and drinking,

(04:08):
using tobacco, and swearing, And then for their part, his
fellow soldiers seemed to have seen him mostly as a
sanctimonious prude. After the war was over, Comstock moved to
New York, where he similarly really disapproved of the prevalence
of things like sex work and explicit literature, so he
started advocating for anti obscenity and anti vice laws. He

(04:30):
started out doing much of this work through the Young
Men's Christian Association, or YMCA, before heading up a new
organization just for that purpose that was the New York
Society for the Suppression of Vice. These two organizations continued
to be closely connected. YMCA leaders served on the Society's board.

(04:51):
There were already laws on the books in various states
at this point that regulated or outlawed things like sex
work or obscenity. But Comstock did not think that these
laws went far enough. He advocated for a much broader
federal law, and he developed reports on things like sex work,
drug use, and sexually explicit printed materials and delivered them

(05:15):
to members of Congress. He really argued that all of
these things were corrupting children, and they were encouraging crime,
and he thought they should all be outlawed. The Comstock
Act was signed into law in March of eighteen seventy three.
It outlawed using the United States Postal Service to send
any quote, obscene, lude, or lascivious book, pamphlet, picture, paper, print,

(05:39):
or other publication of an indecent character, or any article
or thing designed or intended for the prevention of conception
or procuring of abortion. It applied to quote any article
or thing intended or adapted for any indecent or immoral
use or nature. This also included advertisements, notices, and other publications.

(06:04):
Violating this law was punishable with a fine of not
less than one hundred dollars or more than five hundred dollars,
or hard labor of not less than one year or
more than ten years, or both. After having successfully lobbied
for this law to be passed, Comstock was made a
special agent for the United States Postal Service and he

(06:26):
was tasked with enforcing it there. Since the Act didn't
actually define what obscenity was, a lot of this was
up to his discretion. There was also a lot of
focus on materials related to contraception, which was specifically referenced
in the law. Comstock claimed that his work in this
role led to the successful prosecutions of more than thirty

(06:49):
six hundred people, and he claimed that he had destroyed
more than one hundred and sixty tons of literature that was,
at least in his opinion, obscene. While various states already
had anti obscenity laws in place before the Comstock Act
was passed, some revised their laws afterward, and many many

(07:09):
other states passed new ones. By the early twentieth century,
nearly every state had some kind of anti obscenity law. Ultimately,
thirty one states legally defined information about contraception as obscenity,
and twenty four states also banned the sale of contraceptives.
So to point out one of the links back to

(07:32):
an earlier episode of the podcast, when we talked about
Catherine Dexter McCormick, who provided a big part of the
funding for developing oral contraceptives. We talked about her smuggling
diaphragms and to the United States from Europe by sowing
them into the hymns and linings of her clothes, because
diaphragms were illegal. This was why contraceptive advocates and other

(07:56):
reformers pushed for the repeal of the Comstock Act and
all the various state little comstocks for decades. In nineteen sixteen,
birth control advocate Margaret Sanger was tried for violating New
York's anti obscenity law when she tried to import contraceptive
diaphragms into the United States. The New York State Court

(08:16):
of Appeals decided that doctors were exempt from the law
because they were making decisions for their patient's health and
well being rather than for some obscene purpose, but Sanger's
conviction was upheld because she was not a doctor, so
that case was specific to New York. At the federal level,
a similar case started dismantling the Comstock Acts prohibitions on

(08:40):
birth control in nineteen thirty six. This case was United
States versus One package of Japanese Pessaries, which was heard
in the United States Court of Appeals for the Second
Circuit in New York City. This package named in the
case was a box of one hundred and twenty contraceptive diaphragms.
The physician Hannah Stone, who was working with Margaret Sanger,

(09:02):
had tried to import from Japan. The package was seized
at customs because importing contraceptives was illegal under the Tariff
Act of nineteen thirty, which had similar provisions to the
Comstock Act. Because Stone had not taken possession of the shipment,
she had not technically violated the terms of the Tariff Act,
so this case was filed against the package itself. Stone

(09:26):
and her attorneys stood in for the package at trial.
This is a weirder thing that happens in the law
sometimes where you file suit against an inanimate object. The
US Court of Appeals followed the same basic logic that
the New York State Court of Appeals had in the
earlier case against Margaret Sanger. The anti obscenity provisions in

(09:46):
the Teriff Act and also the Comstock Act didn't apply
to physicians because their work as doctors was about patient
health and not obscenity. So in terms of federal law
United States versus one package essentially legalized contraception if that
contraception was provided by a doctor. But this ruling didn't

(10:07):
overturn the laws that were still in the books in
various states. Most states eventually repealed or otherwise overturned their
anti contraception laws by the time the Food and Drug
Administration approved the first oral contraceptive pill in nineteen sixty.
But at that point, Connecticut's law remained in place. And
we'll get to that after a sponsor break. Connecticut's anti

(10:40):
contraception law dated back to eighteen seventy nine. One of
its primary supporters had been the chair of the Connecticut
legislature Joint Committee on Temperance. That was Phineas Taylor Barnum. Yes,
that is P. T. Barnum, the circus guy. Under this law,
quote any person who uses any drug, medicinal article, or

(11:03):
instrument for the purposes of preventing conception shall be fined
not less than forty dollars or imprisoned not less than
sixty days. The law also said, quote any person who
assists a bets, counsels, causes, hires, or commands another to
commit any offense may be prosecuted and punished as if

(11:24):
he were the principal offender. So, in other words, under
this law, using contraception was illegal, and so was providing
contraception or counseling people about it. People in Connecticut lobbied
for the repeal of the law for decades. This escalated
in nineteen twenty three after Catherine Houghton Hepburn and two

(11:45):
of her friends established the Connecticut branch of the American
Birth Control League. Catherine Houghton Hepburn was the mother of
actor Catherine Hepburn, and the American Birth Control League later
became known as Planned Parenthood. But in nineteen thirty eight,
authorities rated a contraceptive clinic in Waterbury, Connecticut and pressed
charges against its medical staff, which put an end to

(12:08):
services at the clinic and also put a damper on
the rest of the movement. So we should take a
moment to note the birth control movement during this era
was deeply flawed. Although it was rooted in the basic
idea of allowing people to choose when and whether to
have children, some of its leaders, including Margaret Sanger, were
also proponents of eugenics. That's rooted in the idea that

(12:32):
the human race can be improved through things like good breeding.
So broadly speaking, positive eugenics was focused on encouraging the
so called right people to have more children, while negative
eugenics was focused on preventing the quote wrong people from reproducing.
This entire idea of eugenics was simultaneously racist, ablest, and

(12:56):
incredibly widely adopted, including in some cases by leader of
various groups of people that the eugenics movement as a
whole saw as inferior. Negative eugenics in particular led to
horrific human rights abuses and was a major influence on
Nazi racial policy. But what were really focused on in
this episode today is access to contraception. Eventually, Connecticut mostly

(13:21):
stopped enforcing its anti contraception law, but since it was
still in the books, this led to disparities and who
could get contraceptives. Condoms were available at some drug stores,
but they weren't an option for everyone, especially for people
whose partners refused to wear condoms, or for people who
needed a more discreet way to prevent pregnancy without their

(13:43):
partner being involved. Middle and upper class people, especially married
couples who had money and access to private medical care,
could usually find a doctor who was willing to provide
them with contraception in spite of the law, or if
not that at least to connect them with another provider
in a state where it was legal. But poor people

(14:04):
who didn't have these kinds of resources often could not,
and people of color who were working within their own
communities as doctors were generally at a lot more risk
than white doctors were. Compounding that, if they were arrested
and lost their medical license, that could mean the loss
of medical care for that whole community. That was something

(14:25):
people had to take into account when deciding whether to
try to get around the law. In nineteen forty, the
Connecticut Supreme Court heard State versus Nelson, involving a case
against two doctors who had been running a birth control clinic,
one that authorities seemed to have ignored until clergy in
the predominantly Catholic neighborhood where it was located demanded it

(14:45):
be investigated. The doctor's attorneys argued that the anti contraception
law shouldn't apply to them because they were prescribing contraception
to married women for the sake of their health and
well being. The court found that the law was unambiguous
contraception was illegal no matter who was prescribing it, and
upheld it. After this, the state prosecutor agreed to drop

(15:08):
charges against the doctors if they closed their clinic, which
they did, and that led the other clinics in the
state to also shut down. Yeah, there had been I
mean this whole time, there had been people who were
trying to provide birth control, and it was like the
threat that since the state had upheld the law, that
other clinics were also going to be targeted just led

(15:29):
a lot of people to make the decision to shut down.
So three years later, Yale Medical School professor Wilder Tileston
filed suit on behalf of patients, arguing that the Connecticut
law needed to have an exception for people whose lives
would be at risk if they became pregnant. This led
to the Connecticut Supreme Court case of Tyleston versus Ullman.

(15:52):
Allman was the Connecticut state's attorney, Abraham Ullman. The Connecticut
Supreme Court rejected Tileston's arguing, noting that people already had
a way to prevent pregnancy that was quote positive and
certain end results. That method was abstinence. The US Supreme
Court heard oral arguments in this case, but eventually dismissed it. Quote.

(16:14):
We are of the opinion that the proceedings in the
state courts present no constitutional question which appellant has standing
to assert. On June twenty third, nineteen sixty the FDA
approved the first oral contraceptive. There's more about this in R.
Nelson Pill Hearings episode from May of twenty twenty one.

(16:35):
By this point, public opinion polls suggested that more than
seventy percent of people in the United States thought information
about contraception should be legal. The introduction of oral contraceptives,
which were in many ways more reliable and more convenient
than other available methods of contraception, also added a renewed
urgency to the effort to get Connecticut's law repealed. In

(16:59):
nineteen sixty one, the US Supreme Court heard two cases
related to Connecticut's anti contraception law. One was Trubeck versus. Ulman. Again,
that's the same Abraham Ullman as before. Louise and Dave
Trubeck had gotten married in nineteen fifty eight while they
were both students at Yale Law School. They wanted to
have children. One day, they did not want to have

(17:20):
children where they were both in law school, but it
was illegal for their doctor to discuss contraception with them.
The Truebach's case had originally been part of a group
of other cases, but they elected not to remain anonymous
and their case was heard separately. The other case was
Poe versus Ulman, and it involved an anonymous couple and

(17:41):
an anonymous married woman. The couple were known as Pauline
and Paul Poe. They had had three children, all of
whom had multiple congenital illnesses and had died as newborns.
They thought it was unlikely that they could have a
child that would survive infancy, and they wanted to avoid
future pregnant. The married woman was known as Jane Doe.

(18:04):
She had had a stroke while pregnant and her child
had been stillborn. She was disabled following the stroke and
it was unlikely that she could survive another pregnancy. These
people all lived in Connecticut, where it was illegal for
their doctors to discuss contraception with them. In a five
to four ruling, the Supreme Court dismissed this case, finding

(18:26):
that quote the records in these cases do not present
controversies justifying the adjudication of a constitutional issue. Justice Felix
Frankfurter authored the opinion, which set, in part quote, this
Court cannot be umpire to debates concerning harmless empty shadows.
In other words, because Connecticut wasn't really enforcing this law

(18:49):
very strictly anymore, it was harmless and empty in the
eyes of the Court. Also, because none of these plaintiffs
had been arrested or convicted of anything, there was no
injury for the court's need to remedy. The Court also
dismissed Trubeck versus Ullman without further comment. As part of
the same set of decisions. The dissenting justices in Poe

(19:11):
versus Ullman all issued their own opinions, arguing, among other things,
that people should not have to break the law to
get basic health information and that there shouldn't need to
be an arrest and conviction in order for the Court
to rule on whether a law was unconstitutional. The dissent
by Justice William O. Douglas said, in part quote, what

(19:33):
are these people, doctor and patience to do? Flout the
law and go to prison, violate the law surreptitiously, and
hope they will not get caught By today's decision. We
leave them no other alternatives. It is not the choice
they need have under the regime of the declaratory judgment
and our constitutional system. It is not the choice worthy

(19:54):
of a civilized society. A sick wife, a concerned husband,
a conscientious doctor seek a dignified, discreet, orderly answer to
the critical problem confronting them. We should not turn them
away and make them flout the law and get arrested
to have their constitutional rights determined. So after this, it

(20:14):
seemed like the Supreme Court would only be willing to
examine Connecticut's law if somebody had been convicted of breaking it.
So immediately after the Court announced its decision on June nineteenth,
nineteen sixty one, Estelle Griswold and Charles Lee Buxton decided
it was time to get arrested. Griswold was executive director
of the Planned Parenthood League of Connecticut. Buxton was its

(20:37):
medical director, and Jane Doe and Pauline and Paul Poe
had been his patients. At this point, Planned Parenthood League
of Connecticut had mostly been providing people with transportation to
New York or Rhode Island, where contraception was legal, rather
than directly providing contraception. But on June twentieth, nineteen sixty one,

(20:58):
just a day after the Supreme Court disc decision, Griswold
and Buxton announced that they would be opening a contraceptive
clinic in New Haven. The clinic opened on November first
of that year, advertising its services specifically to married couples.
They saw ten patients on the first day in operation,
and they also held a press conference. Two days later,

(21:19):
police stopped by and Griswold helpfully told them all about
the work they were doing, the contraceptives they were providing,
the counseling that was available to patients, the literature they
had available, and the fact that they knew it was
all illegal. On June tenth, police returned with warrants for
Griswald and Buxton's arrest, and the clinic was shut down.

(21:40):
Griswald and Buxton stood trial, and their attorneys argued that
counseling married couples on the use of contraception was protected
free speech. The two were convicted and fined one hundred
dollars each, and after a series of appeals, their case
was before the US Supreme Court under Chief Justice Earl Warren.
Warren Court has come up several times on the show.

(22:04):
Earl Warren was Chief Justice when Loving versus Virginia, Brown
versus Board of Education, and Hernandez versus Texas were all decided.
He was also Chief Justice during Yates versus United States,
which we talked about in our episode on co Intel Pro.
We've also talked about his time as Governor of California
on a couple of episodes, including our two parter on

(22:24):
Executive Order ninety sixty six and the mass incarceration of
Japanese Americans during World War Two. We will get to
the Court's decision after we pause for a sponsor break.
On June seventh, nineteen sixty five, and a seven to

(22:47):
two ruling, the US Supreme Court issued its decision in
Griswold versus Connecticut, and it overturned Connecticut's anti contraception laws.
The justices who were part of the court authored multiple
opinions in this case. Justice William O. Douglas, who had
authored one of the descents in Poe versus Ullman, which

(23:07):
we read earlier, authored the majority opinion. Justice Arthur Goldberg
wrote a concurring opinion that was joined by Justice William J.
Brennan Junior and Chief Justice Warren, Justices John M. Harland
the Second and Byron White each issued their own concurring opinions,
and then Justices Hugo. Black and Potter Stewart dissented, as

(23:30):
they had also done in Poe versus Ullman, and each
of them wrote their own descents. The court found that
one Griswold and Buxton did have standing in this matter,
something that had been an issue in those earlier cases,
and the court also found that quote the Connecticut Statute
forbidding use of contraceptives violates the right of marital privacy,

(23:50):
which is within the p number of specific guarantees of
the Bill of Rights. So the easy part with that
is that the court found Connecticut's ban on contraousives to
be unconstitutional. But the rest of it is a little
trickier because a right to marital privacy isn't mentioned or
enumerated in the Constitution. Like we set up at the

(24:12):
very top of the show, substantive due process is the
idea that the courts can protect unenumerated rights, and in
Griswold versus Connecticut, the Court was arguing that the right
to privacy was found in the penumbra or the shadow
of other rights that are mentioned. The majority opinion referenced
a series of previous cases in which protected rights were

(24:35):
interpreted as being broader than what was spelled out in
the Constitution. For example, in Meyer versus State of Nebraska,
the Court had struck down a law mandating that children
be taught only in English through the eighth grade. The
court found that this violated the due process clause of
the Fourteenth Amendment, which says that no state shall quote

(24:55):
deprive any person of life, liberty, or property without due
process of law. In this case, a teacher in a
Lutheran school was teaching reading in German, and the court
found that even though the Fourteenth Amendment didn't reference things
like languages other than English, quote, his right thus to teach,
and the right of parents to engage him so to

(25:15):
instruct their children, we think are within the liberty of
the Amendment. The majority opinion in Griswold versus Connecticut then
ticked through a series of similar cases and their associated freedoms.
Like in earlier cases, the court had found that the
First Amendment protection of free speech also included the right
to read and to receive information. The court had also

(25:38):
described the First Amendment freedom to assemble as extending to
the freedom of association with other people. So assembly did
not just mean physically going to a meeting. It also
involved being affiliated with a group and expressing personal philosophies
through being a member of that group. Having been through

(25:59):
all of that, the major already opinion read quote. The
foregoing cases suggest that specific guarantees in the Bill of
Rights have p numbers formed by emanations from those guarantees
that help give them life and substance. Various guarantees create
zones of privacy. The right of association contained in the
penumber of the First Amendment is one, as we have seen.

(26:22):
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
to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures. The Fifth Amendment, in its

(26:46):
self incrimination clause, enables the citizens 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. Yeah, that

(27:06):
last one basically means just because a specific right is
not mentioned in the Constitution, that doesn't mean that right
doesn't exist, like not saying every single right on the
planet has to be specifically named or it's not a
real thing. This decision went on to build the idea
of a zone of privacy that was specifically related to
a marital relationship. Quote. The present case then concerns a

(27:29):
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 having
a maximum destructive impact upon that relationship. It went on

(27:50):
to rhetorically ask, quote, would we allow the police to
search the sacred precincts of marital bedrooms for tell tale
signs of the use of contraceptives? The very idea is
repulsive to the notions of privacy surrounding the marriage relationship.
So all those various concurring opinions agreed with the idea
that the right to privacy could be inferred from some

(28:12):
part of the Constitution. They just all differed a little
bit on exactly how or where. And then the two
dissenting justices made it clear that they did not like
this law either, even though they didn't find that there
was a constitutional reason to overturn it. Justice Hugo. Black's
read in part quote, I feel constrained to add that

(28:32):
the law is every bit as offensive to me as
it is to my brethren of the majority, and my
brothers Harlan White and Goldberg, who, reciting reasons why it
is offensive to them, hold it unconstitutional. Justice Potter Stewart
wrote in his dissent quote, I think this is an
uncommonly silly law. As a practical matter, the law is

(28:54):
obviously unenforceable except in the oblique context of the present case.
It's a philosophical matter. I believe the use of contraceptives
in the relationship of marriage should be left to personal
and private choice based upon each individual's moral, ethical, and
religious beliefs. As a matter of social policy, I think
professional counsel about methods of birth control should be available

(29:18):
to all, so that each individual's choice can be meaningfully made.
But we are not asked in this case to say
whether we think this law is unwise or even asinine.
We are asked to hold that it violates the United
States Constitution, and that I cannot do. The majority, though,
had found that it violated the Constitution, and by finding

(29:40):
Connecticut's anti contraception law unconstitutional, the Supreme Court made contraception
and contraceptive counseling legal nationwide in the context of married couples.
So this also struck down the anti contraception language in
the Comstock Act, which was still on the books. So
this was a victory in terms of access to contraception,

(30:03):
but it was definitely incomplete. Number One, it applied only
to married couples. The focus was on the idea that
privacy was intrinsic to a married relationship, so laws forbidding
contraceptive use or counseling for single people were unaffected. Number two,
This idea that there were p numbers creating zones of

(30:24):
privacy was immediately controversial. There were and continue to be
legal scholars who argue that this isn't really a thing,
and that this was faulty reasoning on the part of
the justices. Beyond that, there were people, particularly women's rights activists,
who raised concerns about this ruling's focus. There is no

(30:45):
constitutional guarantee of equal rights for women in the United States,
and at this point, the Equal Rights Amendment had not
yet been passed by Congress. As we discussed in our
previous episode on the Equal Rights Amendment. Even though Congress
did did eventually pass it, not enough states ratified it
by the deadline for it to become part of the Constitution.

(31:06):
So there were a lot of women in particular who
thought that the Court should have used a different reasoning,
like maybe one that interpreted the Fourteenth Amendment's equal Protection
and do process clauses as protecting a woman's right to
bodily autonomy. We recognize that not everyone who can get
pregnant is a woman, including transmen and non binary people,

(31:27):
and that there were also plenty of people living at
the time who were living outside the gender binary in
various ways, But really the focus of the response to
this in nineteen sixty five was on women. During research
for this episode, Tracy read a paper in the American
Historical Review. This suggested that this privacy angle might have
been influenced by the Wolfenden Report, which was published in

(31:48):
the UK in nineteen fifty seven. This report followed a
rise in convictions for breaking laws against homosexual behavior, including
convictions of some high profile men. A committee was formed
to investigate UK laws around homosexuality and sex work, and
it recommended decriminalization of homosexuality. In the words of that report,

(32:11):
their quote must remain a realm of private morality and immorality,
which is, in brief and crude terms, not the law's business.
But if this idea influenced the thought process of the
justices in Griswold versus Connecticut, it didn't make its way
into Supreme Court decisions about same sex relationships until much later.

(32:32):
As we said at the top of the show, the
Supreme Court decision in Griswold versus Connecticut and the reasoning
that was used to make that decision have become part
of a lot of other cases. In nineteen sixty nine,
the Supreme Court cited Griswald be Connecticut and its decision
in Stanley versus Georgia, which found that possession of obscene
materials was protected in part because of a right deprivacy.

(32:55):
In nineteen seventy two, the Court struck down a Massachusetts
law banning the distribution of contraceptives to unmarried people. Although
the question before the court was whether this law violated
the privacy standard established in Griswold versus Connecticut, the Court
found that it violated the Fourteenth Amendment Due process clause.

(33:15):
In nineteen seventy three, the Court issued its decision in
Roe versus Wade, finding the right to privacy established in
Griswold as being inherent in the due process clause of
the Fourteenth Amendment and also extending to a person's decision
to terminate a pregnancy. But the Court also ruled that
this right had to be balanced out with other concerns

(33:36):
related to protecting a person's health and to quote, the
potentiality of human life. In nineteen eighty six, the Supreme
Court cited Griswold versus Connecticut in its ruling in Bowers
versus Hardwick, which upheld a Georgia law banning sodomy. Although
attorneys had argued that sodomy was protected under the right
to privacy that was established in Griswold, the court disagreed.

(34:00):
This ruling was overturned in two thousand and three in
Lawrence versus Texas, which was related to both the right
to privacy and to the due process clause of the
Fourteenth Amendment. In twenty fifteen, the Court once again issued
a ruling that was partly underpinned by Griswold versus Connecticut,
and that was Obergefell versus Hodges. This decision recognized same

(34:22):
sex marriages as legal nationwide, and it cited Griswold at
several points, including the decision's description of marriage as a
right that's older than the Bill of Rights. And most recently,
the Court issued its decision in Dobbs versus Jackson Women's
Health Organization, overturning Roe v. Wade. This decision also overturned

(34:43):
Planned Parenthood v. Casey, in which the Court had upheld
Roe v. Wade and a constitutional right to abortion in
nineteen ninety two. The Court's opinion, written by Justice Samuel Alito,
noted that the Constitution makes no mention of abortion, something
also true of the right place to privacy established in
Griswold versus Connecticut. But in the Court's opinion, Roe versus

(35:05):
Wade was different from Griswold versus Connecticut because it did
not involve quote, the destruction of what Roe called potential life.
So the majority opinion in this case noted the connection
to several cases we just mentioned. There was Griswold, there
was Eisenstadt versus Baird, which is the one that overturned

(35:25):
the Massachusetts law barring contraception for unmarried people, and also Obergefell,
calling the fear that the Dobbs decision would apply to
those rulings as quote unfounded. But as we said at
the top of the show, in his concurring opinion, Clarence
Thomas wrote that future cases should reconsider rulings that have
relied on substantive due process, including Griswold, Lawrence, and Obergefell.

(35:51):
So that suggests otherwise that is Griswold versus Connecticut, which,
as I said of the tapish d working my way
through all that made it a lot easier for me
to understand what the logic had been behind the ruling
in Roe versus Weights. Thanks so much for joining us

(36:16):
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(36:37):
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