Griswold
v. Connecticut: Is a Fundamental Right at Risk?
May
6, 2022
Many of us
Americans are quite appropriately upset if not downright furious that the
United States Supreme Court appears intent on overruling the case of Roe v.
Wade, 410 U.S. 113 (1973), the Supreme Court case that held that the US
Constitution guarantees a right to abortion within certain limits.[1]
Roe in turn would certainly not have been decided the way it was without
the earlier case of Griswold v. Connecticut, 381 U.S. 479 (1965), the
case that established a constitutional right to privacy. In his draft opinion
in Dobbs v. Jackson Women’s Health Organization that was leaked to the
press Justice Alito says, “Roe was egregiously wrong from the start.” Because
Roe relies at least in considerable part on Griswold, many have
expressed the concern that if the court overrules Roe, as it appears it
will, it could next overrule Griswold. The Supreme Court overruling Roe
is more than shocking and significant enough itself. The court overruling Griswold
would be even more significant legally if not immediately societally. At least
two other very important Supreme Court decisions depend on Griswold in
the same way Roe does. They are Loving v. Virginia, 388 U.S. 1
(1967) and Obergefell v. Hodges, 576 U.S. 644 (2015). Loving
voids laws against mixed-race marriage. Obergefell establishes a
nationwide right to same-gender marriage. It will be worth our time to take a
close look at Griswold to understand its rationale, the dissenting
opinion in it, and how today’s Supreme Court might overrule it.
Griswold
involved a Connecticut state statute, enacted in 1879, that prohibited the use
of contraceptives. The law made both the use of contraceptives and abetting
anyone in using contraceptives crimes. A married couple and a doctor were
arrested for violating the law merely by discussing contraception. The
defendants defended the case against them by attacking the Connecticut law
under which they were charged as unconstitutional. The Supreme Court accepted
review of the case. In a 7-2 decision, the court reversed the defendants’
criminal convictions. Though the seven justices who voted to reverse those
convictions found different constitutional bases for their conclusion, they all
found that there is somewhere in the US Constitution a guaranteed right to
privacy.
Justice William
O. Douglas wrote the opinion of the court. He had to concede that the
Constitution does not expressly create a right of privacy. Citing certain
earlier cases, he found that the rights that are specifically mentioned in the
Constitution have a “penumbra” that includes a right to privacy.
”Penumbra” is first of all a term in
astronomy, where it means a part of a shadow in which only part of the light is
blocked. In Griswold, Justice Douglas used the term to indicate a kind
of zone around and created by the Constitution’s enumerated rights. This zone,
he said, contains constitutionally guaranteed rights that the Constitution does
not expressly create. One of those rights is a right to privacy. (It is unclear
to me what other rights may be found in the penumbra.) The majority of the
court found that the Connecticut law in question violated that right and was
therefore unconstitutional.
Justice Hugo
Black wrote a dissenting opinion that Justice Potter Steward joined. Justice
Black first made it clear that he did not base his opinion that the Connecticut
law was constitutional “on a belief that the law is wise or that it’s policy is
a good one.” He said he agreed with all of the odium the other justices heaped
upon the law. He said, however, that he could not agree that what he called
“the evil qualities” of the law make it unconstitutional. In other words, a law
isn’t unconstitutional just because it is bad law.
Justice Black’s
main point is that there simply is nothing in the Constitution that expressly
creates a right to privacy, as indeed there is not. He expressed his objection
to the court nonetheless finding such a right in the Constitution this way:
One of the most effective ways of diluting or expanding a
constitutionally guaranteed right is to substitute for the crucial word or
words of a constitutional guarantee another word or words, more or less flexible
and more or less restricted in meaning.
Black stakes out his position as
what is usually called a strict constructionist. Stick to the actual words of
the Constitution, he says. Don’t go using words or concepts that just aren’t there
to find something the Constitution does not expressly create.
Closer to the end
of his brief dissenting opinion, Justice Black made his position as a strict
constructionist even clearer. He wrote:
I realize that many good and able men (sic) have eloquently
spoken and written, sometimes in rhapsodic strains, about the duty of this
Court to keep the Constitution in tune with the times. The idea is that the
Constitution must be changed from time to time and that this Court is charged
with a duty to make those changes. For myself, I must with all deference reject
that philosophy.
The makers of the Constitution, Justice
Black quite correctly says, knew that the Constitution could from time to time
require change. So they put a procedure for amending the Constitution in the
Constitution itself. Black says of that procedure, “That method of change was
good for our Fathers, and being somewhat old-fashioned I must add that it is
good enough for me.” In good strict constructionist fashion Justice Black is
saying that if you want to change the Constitution do it the way the
Constitution says to do it. Don’t presume that the Supreme Court has the power,
which is nowhere expressed in the Constitution, to change it for you. Justice
Black truly comes across here as a dyed-in-the-wool strict constructionist.
Griswold
gives us perfect examples of two different and conflicting approaches to
constitutional interpretation. The majority in the case in effect saw itself
free to interpret the Constitution to make it conform to societal beliefs about
privacy that surely had progressed since the time Connecticut first banned
contraception (although the court did not use that language in its decision). All
of the court’s justices found the law before them to be very bad, even
ludicrous public policy. One gets the sense reading the deciding opinion that
the case presented the court with an obvious conclusion in search of a
constitutional rationale. The majority found one. Justice Black did not.
Justice Alito is
a strict constructionist very much in the mold of Justice Black. The decisive
point for him in reaching his decision to overrule Roe is that the
Constitution “makes no reference to abortion, and no such right is implicitly
protected by any constitutional provision….” One gets the sense that it is
actually the first part of that statement that decides the case for him: The
Constitution contains no explicit right of abortion, therefore there is no
constitutional right of abortion. The Roe court was just wrong when it
said there was.
It is easy to see
how the right to privacy that Griswold found in the Constitution may be
at risk. Justice Alito surely would have joined Justice Black’s dissent in that
case. Former Justice Black and current Justice Alito are cut from the same
cloth. They agree that if something is not expressly in the Constitution, it’s
not in the Constitution. It seems certain that the four other conservative
justices on today’s Supreme Court, three of them nominated by Donald Trump for
the sole or at least primary purpose of overruling Roe, agree with that
understanding. As I noted above, in his draft opinion in Dobbs Justice
Alito says that Roe was egregiously wrong from the start. He almost
certainly believes that Griswold was also egregiously wrong from the
start. We know that his intense disagreement with Roe is enough to get
him to say it must be overruled. It is highly likely that what I assume is his
intense dislike of Griswold will lead him to advocate overruling that
case too if the opportunity presents itself. All he would have to do would be
to echo Justice Black’s dissenting opinion. He might well one day have enough
votes on the court to make that dissent a majority opinion.
There is at the
moment no reason to believe that the Supreme Court will have an opportunity to
overrule Griswold any time soon. Perhaps it isn’t inevitable that the
court overruling Griswold would lead it to overrule Loving v.
Virginia and Obergefell v. Hodges as well. Yet overruling Griswold
would knock the legal support out from under those cases. If a far-right majority
on the Supreme Court were to overrule Griswold, it would be a short step
for it to overrule Loving and Obergefell as well. We don’t know
if it will happen. It will be a tragic day for American justice if it does.
[1] I
am not a lawyer. I do however have a legal education, and I practiced law for
over twenty years before I resigned from the bar when I changed professions.
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