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Speaker 1: Happy Saturday. This episode is coming out on the sixtieth

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Speaker 1: anniversary of the U. S. Supreme Court decision in Griswold

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Speaker 1: versus Connecticut, which was decided on June seventh, nineteen sixty five.

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Speaker 1: It overturned a Connecticut law banning contraception and established a

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Speaker 1: basis for a right to privacy for married couples in

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Speaker 1: the US. This episode also makes some references to the

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Speaker 1: right to due process. This is part of the fifth

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Speaker 1: and fourteenth Amendments to the US Constitution, which both specify

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Speaker 1: that no person will be deprived of their life, liberty,

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Speaker 1: or property without due process of law, meaning a fair

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Speaker 1: hearing or some other type of fair proceeding. So we

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Speaker 1: would just like to take a moment to note that

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Speaker 1: this language in both of these amendments applies to persons,

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Speaker 1: not just to citizens. Everyone has the right to do process,

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Speaker 1: including immigrants regardless of their immigration status. This episode originally

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Speaker 1: came out on July twenty seventh, twenty twenty two. Welcome

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Speaker 1: to Stuff You Missed in History Class, a production of iHeartRadio.

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Speaker 1: Hello and welcome to the podcast. I'm Tracy B. Wilson

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Speaker 1: and I'm Holly Frye. I've been circling the idea of

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Speaker 1: an episode on Griswold versus Connecticut for years. That's the

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Speaker 1: US Supreme Court decision that overturned law's banning contraception, at

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Speaker 1: least when it came to married couples. That's connected to

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Speaker 1: several of our previous episodes as well. But the recent

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Speaker 1: Supreme Court decision in Dobbs versus Jackson Women's Health Organization

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Speaker 1: is really what finally propelled it up to the top.

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Speaker 1: That's the decision that came out just recently which overturned

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Speaker 1: Roe versus Wade and Planned Parenthood versus Casey. And in

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Speaker 1: the concurring opinion that he wrote on this case, just

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Speaker 1: as Claris Thomas wrote, quote, in future cases, we should

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Speaker 1: reconsider all of this Court's substantive due process precedence, including Griswold,

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Speaker 1: Lawrence and obergefel So. Substantive due process that's the idea

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Speaker 1: that courts can protect various rights that aren't specifically named

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Speaker 1: in the Constitution, and in this case, it's the right

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Speaker 1: to privacy. Griswold versus Connecticut wasn't the very first Supreme

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Speaker 1: Court decision ever in the US to mention the right

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Speaker 1: of a concept of privacy, but it was a major

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Speaker 1: decision in that regard. I personally always had a lot

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Speaker 1: of trouble understanding the logic behind the decision of Roe

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Speaker 1: versus Wade, not the outcome, but like the reasoning of

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Speaker 1: how they got there, which was essentially the abortion was

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Speaker 1: also protected under a right to privacy. That logic, though,

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Speaker 1: makes a lot more sense to me with Griswold versus

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Speaker 1: Connecticut as background. And then this decision has also mentioned

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Speaker 1: and a lot of other decisions that came after it,

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Speaker 1: beyond just the ones that were mentioned in Thomas's concurring opinions.

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Speaker 1: So that's what we're talking about today. Heads up. Obviously,

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Speaker 1: we're going to be talking a lot about contraception in

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Speaker 1: this episode. There's also a bit about abortion and some

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Speaker 1: things related to pregnancy and birth related trauma. Griswold versus

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Speaker 1: Connecticut overturned a law that was sometimes described as a

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Speaker 1: quote little Comstock law that was a nickname for various

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Speaker 1: state anti obscenity laws that were similar to the Comstock

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Speaker 1: Act of eighteen seventy three, or more formally known as

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Speaker 1: an Act for the Suppression of Trade in and Circulation

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Speaker 1: of Obscene Literature and articles of immoral use. This law

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Speaker 1: was named for social reformer Anthony Comstock, coincidentally also of Connecticut.

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Speaker 1: Comstock served in the Union Army during the US Civil War.

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Speaker 1: His upbringing had been deeply concerned, and during his time

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Speaker 1: in the army he really disapproved of a lot of

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Speaker 1: his fellow soldier's behavior, especially things like gambling and drinking,

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Speaker 1: using tobacco, and swearing, And then for their part, his

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Speaker 1: fellow soldiers seemed to have seen him mostly as a

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Speaker 1: sanctimonious prude. After the war was over, Comstock moved to

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Speaker 1: New York, where he similarly really disapproved of the prevalence

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Speaker 1: of things like sex work and explicit literature, so he

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Speaker 1: started advocating for anti obscenity and anti vice laws. He

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Speaker 1: started out doing much of this work through the Young

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Speaker 1: Men's Christian Association, or YMCA, before heading up a new

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Speaker 1: organization just for that purpose that was the New York

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Speaker 1: Society for the Suppression of Vice. These two organizations continued

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Speaker 1: to be closely connected. YMCA leaders served on the Society's board.

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Speaker 1: There were already laws on the books in various states

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Speaker 1: at this point that regulated or outlawed things like sex

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Speaker 1: work or obscenity. But Comstock did not think that these

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Speaker 1: laws went far enough. He advocated for a much broader

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Speaker 1: federal law, and he developed reports on things like sex work,

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Speaker 1: drug use, and sexually explicit printed materials and delivered them

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Speaker 1: to members of Congress. He really argued that all of

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Speaker 1: these things were corrupting children, and they were encouraging crime,

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Speaker 1: and he thought they should all be outlawed. The Comstock

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Speaker 1: Act was signed into law in March of eighteen seventy three.

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Speaker 1: It outlawed using the United States Postal Service to send

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Speaker 1: any quote, obscene, lude, or lascivious book, pamphlet, picture, paper, print,

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Speaker 1: or other publication of an indecent character, or any article

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Speaker 1: or thing designed or intended for the prevention of conception

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Speaker 1: or procuring of abortion. It applied to quote any article

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Speaker 1: or thing intended or adapted for any indecent or immoral

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Speaker 1: use or nature. This also included advertisements, notices, and other publications.

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Speaker 1: Violating this law was punishable with a fine of not

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Speaker 1: less than one hundred dollars or more than five hundred dollars,

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Speaker 1: or hard labor of not less than one year or

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Speaker 1: more than ten years, or both. After having successfully lobbied

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Speaker 1: for this law to be passed, Comstock was made a

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Speaker 1: special agent for the United States Postal Service and he

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Speaker 1: was tasked with enforcing it there. Since the Act didn't

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Speaker 1: actually define what obscenity was, a lot of this was

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Speaker 1: up to his discretion. There was also a lot of

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Speaker 1: focus on materials related to contraception, which was specifically referenced

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Speaker 1: in the law. Comstock claimed that his work in this

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Speaker 1: role led to the successful prosecutions of more than thirty

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Speaker 1: six hundred people, and he claimed that he had destroyed

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Speaker 1: more than one hundred and sixty tons of literature that was,

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Speaker 1: at least in his opinion, obscene. While various states already

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Speaker 1: had anti obscenity laws in place before the Comstock Act

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Speaker 1: was passed, some revised their laws afterward, and many many

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Speaker 1: other states passed new ones. By the early twentieth century,

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Speaker 1: nearly every state had some kind of anti obscenity law. Ultimately,

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Speaker 1: thirty one states legally defined information about contraception as obscenity,

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Speaker 1: and twenty four states also banned the sale of contraceptives.

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Speaker 1: So to point out one of the links back to

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Speaker 1: an earlier episode of the podcast, when we talked about

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Speaker 1: Catherine Dexter McCormick, who provided a big part of the

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Speaker 1: funding for developing oral contraceptives. We talked about her smuggling

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Speaker 1: diaphragms and to the United States from Europe by sowing

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Speaker 1: them into the hymns and linings of her clothes, because

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Speaker 1: diaphragms were illegal. This was why contraceptive advocates and other

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Speaker 1: reformers pushed for the repeal of the Comstock Act and

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Speaker 1: all the various state little comstocks for decades. In nineteen sixteen,

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Speaker 1: birth control advocate Margaret Sanger was tried for violating New

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Speaker 1: York's anti obscenity law when she tried to import contraceptive

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Speaker 1: diaphragms into the United States. The New York State Court

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Speaker 1: of Appeals decided that doctors were exempt from the law

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Speaker 1: because they were making decisions for their patient's health and

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Speaker 1: well being rather than for some obscene purpose, but Sanger's

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Speaker 1: conviction was upheld because she was not a doctor, so

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Speaker 1: that case was specific to New York. At the federal level,

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Speaker 1: a similar case started dismantling the Comstock Acts prohibitions on

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Speaker 1: birth control in nineteen thirty six. This case was United

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Speaker 1: States versus One package of Japanese Pessaries, which was heard

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Speaker 1: in the United States Court of Appeals for the Second

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Speaker 1: Circuit in New York City. This package named in the

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Speaker 1: case was a box of one hundred and twenty contraceptive diaphragms.

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Speaker 1: The physician Hannah Stone, who was working with Margaret Sanger,

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Speaker 1: had tried to import from Japan. The package was seized

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Speaker 1: at customs because importing contraceptives was illegal under the Tariff

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Speaker 1: Act of nineteen thirty, which had similar provisions to the

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Speaker 1: Comstock Act. Because Stone had not taken possession of the shipment,

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Speaker 1: she had not technically violated the terms of the Tariff Act,

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Speaker 1: so this case was filed against the package itself. Stone

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Speaker 1: and her attorneys stood in for the package at trial.

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Speaker 1: This is a weirder thing that happens in the law

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Speaker 1: sometimes where you file suit against an inanimate object. The

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Speaker 1: US Court of Appeals followed the same basic logic that

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Speaker 1: the New York State Court of Appeals had in the

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Speaker 1: earlier case against Margaret Sanger. The anti obscenity provisions in

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Speaker 1: the Teriff Act and also the Comstock Act didn't apply

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Speaker 1: to physicians because their work as doctors was about patient

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Speaker 1: health and not obscenity. So in terms of federal law

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Speaker 1: United States versus one package essentially legalized contraception if that

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Speaker 1: contraception was provided by a doctor. But this ruling didn't

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Speaker 1: overturn the laws that were still in the books in

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Speaker 1: various states. Most states eventually repealed or otherwise overturned their

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Speaker 1: anti contraception laws by the time the Food and Drug

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Speaker 1: Administration approved the first oral contraceptive pill in nineteen sixty.

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Speaker 1: But at that point, Connecticut's law remained in place. And

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Speaker 1: we'll get to that after a sponsor break. Connecticut's anti

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Speaker 1: contraception law dated back to eighteen seventy nine. One of

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Speaker 1: its primary supporters had been the chair of the Connecticut

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Speaker 1: legislature Joint Committee on Temperance. That was Phineas Taylor Barnum. Yes,

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Speaker 1: that is P. T. Barnum, the circus guy. Under this law,

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Speaker 1: quote any person who uses any drug, medicinal article, or

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Speaker 1: instrument for the purposes of preventing conception shall be fined

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Speaker 1: not less than forty dollars or imprisoned not less than

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Speaker 1: sixty days. The law also said, quote any person who

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Speaker 1: assists a bets, counsels, causes, hires, or commands another to

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Speaker 1: commit any offense may be prosecuted and punished as if

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Speaker 1: he were the principal offender. So, in other words, under

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Speaker 1: this law, using contraception was illegal, and so was providing

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Speaker 1: contraception or counseling people about it. People in Connecticut lobbied

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Speaker 1: for the repeal of the law for decades. This escalated

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Speaker 1: in nineteen twenty three after Catherine Houghton Hepburn and two

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Speaker 1: of her friends established the Connecticut branch of the American

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Speaker 1: Birth Control League. Catherine Houghton Hepburn was the mother of

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Speaker 1: actor Catherine Hepburn, and the American Birth Control League later

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Speaker 1: became known as Planned Parenthood. But in nineteen thirty eight,

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Speaker 1: authorities rated a contraceptive clinic in Waterbury, Connecticut and pressed

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Speaker 1: charges against its medical staff, which put an end to

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Speaker 1: services at the clinic and also put a damper on

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Speaker 1: the rest of the movement. So we should take a

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Speaker 1: moment to note the birth control movement during this era

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Speaker 1: was deeply flawed. Although it was rooted in the basic

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Speaker 1: idea of allowing people to choose when and whether to

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Speaker 1: have children, some of its leaders, including Margaret Sanger, were

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Speaker 1: also proponents of eugenics. That's rooted in the idea that

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Speaker 1: the human race can be improved through things like good breeding.

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Speaker 1: So broadly speaking, positive eugenics was focused on encouraging the

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Speaker 1: so called right people to have more children, while negative

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Speaker 1: eugenics was focused on preventing the quote wrong people from reproducing.

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Speaker 1: This entire idea of eugenics was simultaneously racist, ablest, and

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Speaker 1: incredibly widely adopted, including in some cases by leader of

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Speaker 1: various groups of people that the eugenics movement as a

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Speaker 1: whole saw as inferior. Negative eugenics in particular led to

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Speaker 1: horrific human rights abuses and was a major influence on

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Speaker 1: Nazi racial policy. But what were really focused on in

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Speaker 1: this episode today is access to contraception. Eventually, Connecticut mostly

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Speaker 1: stopped enforcing its anti contraception law, but since it was

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Speaker 1: still in the books, this led to disparities and who

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Speaker 1: could get contraceptives. Condoms were available at some drug stores,

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Speaker 1: but they weren't an option for everyone, especially for people

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Speaker 1: whose partners refused to wear condoms, or for people who

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Speaker 1: needed a more discreet way to prevent pregnancy without their

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Speaker 1: partner being involved. Middle and upper class people, especially married

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Speaker 1: couples who had money and access to private medical care,

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Speaker 1: could usually find a doctor who was willing to provide

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Speaker 1: them with contraception in spite of the law, or if

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Speaker 1: not that at least to connect them with another provider

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Speaker 1: in a state where it was legal. But poor people

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Speaker 1: who didn't have these kinds of resources often could not,

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Speaker 1: and people of color who were working within their own

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Speaker 1: communities as doctors were generally at a lot more risk

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Speaker 1: than white doctors were. Compounding that, if they were arrested

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Speaker 1: and lost their medical license, that could mean the loss

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Speaker 1: of medical care for that whole community. That was something

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Speaker 1: people had to take into account when deciding whether to

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Speaker 1: try to get around the law. In nineteen forty, the

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Speaker 1: Connecticut Supreme Court heard State versus Nelson, involving a case

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Speaker 1: against two doctors who had been running a birth control clinic,

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Speaker 1: one that authorities seemed to have ignored until clergy in

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Speaker 1: the predominantly Catholic neighborhood where it was located demanded it

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Speaker 1: be investigated. The doctor's attorneys argued that the anti contraception

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Speaker 1: law shouldn't apply to them because they were prescribing contraception

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Speaker 1: to married women for the sake of their health and

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Speaker 1: well being. The court found that the law was unambiguous

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Speaker 1: contraception was illegal no matter who was prescribing it, and

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Speaker 1: upheld it. After this, the state prosecutor agreed to drop

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Speaker 1: charges against the doctors if they closed their clinic, which

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Speaker 1: they did, and that led the other clinics in the

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Speaker 1: state to also shut down. Yeah, there had been I

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Speaker 1: mean this whole time, there had been people who were

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Speaker 1: trying to provide birth control, and it was like the

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Speaker 1: threat that since the state had upheld the law, that

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Speaker 1: other clinics were also going to be targeted just led

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Speaker 1: a lot of people to make the decision to shut down.

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Speaker 1: So three years later, Yale Medical School professor Wilder Tileston

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Speaker 1: filed suit on behalf of patients, arguing that the Connecticut

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Speaker 1: law needed to have an exception for people whose lives

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Speaker 1: would be at risk if they became pregnant. This led

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Speaker 1: to the Connecticut Supreme Court case of Tyleston versus Ullman.

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Speaker 1: Allman was the Connecticut state's attorney, Abraham Ullman. The Connecticut

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Speaker 1: Supreme Court rejected Tileston's arguing, noting that people already had

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Speaker 1: a way to prevent pregnancy that was quote positive and

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Speaker 1: certain end results. That method was abstinence. The US Supreme

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Speaker 1: Court heard oral arguments in this case, but eventually dismissed it. Quote.

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Speaker 1: We are of the opinion that the proceedings in the

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Speaker 1: state courts present no constitutional question which appellant has standing

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Speaker 1: to assert. On June twenty third, nineteen sixty the FDA

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Speaker 1: approved the first oral contraceptive. There's more about this in R.

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Speaker 1: Nelson Pill Hearings episode from May of twenty twenty one.

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Speaker 1: By this point, public opinion polls suggested that more than

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Speaker 1: seventy percent of people in the United States thought information

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Speaker 1: about contraception should be legal. The introduction of oral contraceptives,

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Speaker 1: which were in many ways more reliable and more convenient

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Speaker 1: than other available methods of contraception, also added a renewed

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Speaker 1: urgency to the effort to get Connecticut's law repealed. In

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Speaker 1: nineteen sixty one, the US Supreme Court heard two cases

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Speaker 1: related to Connecticut's anti contraception law. One was Trubeck versus. Ulman. Again,

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Speaker 1: that's the same Abraham Ullman as before. Louise and Dave

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Speaker 1: Trubeck had gotten married in nineteen fifty eight while they

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Speaker 1: were both students at Yale Law School. They wanted to

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Speaker 1: have children. One day, they did not want to have

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Speaker 1: children where they were both in law school, but it

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Speaker 1: was illegal for their doctor to discuss contraception with them.

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Speaker 1: The Truebach's case had originally been part of a group

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Speaker 1: of other cases, but they elected not to remain anonymous

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Speaker 1: and their case was heard separately. The other case was

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Speaker 1: Poe versus Ulman, and it involved an anonymous couple and

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Speaker 1: an anonymous married woman. The couple were known as Pauline

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Speaker 1: and Paul Poe. They had had three children, all of

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Speaker 1: whom had multiple congenital illnesses and had died as newborns.

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Speaker 1: They thought it was unlikely that they could have a

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Speaker 1: child that would survive infancy, and they wanted to avoid

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Speaker 1: future pregnant. The married woman was known as Jane Doe.

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Speaker 1: She had had a stroke while pregnant and her child

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Speaker 1: had been stillborn. She was disabled following the stroke and

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Speaker 1: it was unlikely that she could survive another pregnancy. These

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Speaker 1: people all lived in Connecticut, where it was illegal for

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Speaker 1: their doctors to discuss contraception with them. In a five

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Speaker 1: to four ruling, the Supreme Court dismissed this case, finding

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Speaker 1: that quote the records in these cases do not present

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Speaker 1: controversies justifying the adjudication of a constitutional issue. Justice Felix

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Speaker 1: Frankfurter authored the opinion, which set, in part quote, this

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Speaker 1: Court cannot be umpire to debates concerning harmless empty shadows.

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Speaker 1: In other words, because Connecticut wasn't really enforcing this law

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Speaker 1: very strictly anymore, it was harmless and empty in the

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Speaker 1: eyes of the Court. Also, because none of these plaintiffs

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Speaker 1: had been arrested or convicted of anything, there was no

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Speaker 1: injury for the court's need to remedy. The Court also

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Speaker 1: dismissed Trubeck versus Ullman without further comment. As part of

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Speaker 1: the same set of decisions. The dissenting justices in Poe

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Speaker 1: versus Ullman all issued their own opinions, arguing, among other things,

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Speaker 1: that people should not have to break the law to

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Speaker 1: get basic health information and that there shouldn't need to

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Speaker 1: be an arrest and conviction in order for the Court

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Speaker 1: to rule on whether a law was unconstitutional. The dissent

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Speaker 1: by Justice William O. Douglas said, in part quote, what

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Speaker 1: are these people, doctor and patience to do? Flout the

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Speaker 1: law and go to prison, violate the law surreptitiously, and

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Speaker 1: hope they will not get caught By today's decision. We

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Speaker 1: leave them no other alternatives. It is not the choice

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Speaker 1: they need have under the regime of the declaratory judgment

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Speaker 1: and our constitutional system. It is not the choice worthy

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Speaker 1: of a civilized society. A sick wife, a concerned husband,

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Speaker 1: a conscientious doctor seek a dignified, discreet, orderly answer to

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Speaker 1: the critical problem confronting them. We should not turn them

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Speaker 1: away and make them flout the law and get arrested

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Speaker 1: to have their constitutional rights determined. So after this, it

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Speaker 1: seemed like the Supreme Court would only be willing to

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Speaker 1: examine Connecticut's law if somebody had been convicted of breaking it.

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Speaker 1: So immediately after the Court announced its decision on June nineteenth,

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Speaker 1: nineteen sixty one, Estelle Griswold and Charles Lee Buxton decided

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Speaker 1: it was time to get arrested. Griswold was executive director

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Speaker 1: of the Planned Parenthood League of Connecticut. Buxton was its

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Speaker 1: medical director, and Jane Doe and Pauline and Paul Poe

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Speaker 1: had been his patients. At this point, Planned Parenthood League

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Speaker 1: of Connecticut had mostly been providing people with transportation to

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Speaker 1: New York or Rhode Island, where contraception was legal, rather

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Speaker 1: than directly providing contraception. But on June twentieth, nineteen sixty one,

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Speaker 1: just a day after the Supreme Court disc decision, Griswold

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Speaker 1: and Buxton announced that they would be opening a contraceptive

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Speaker 1: clinic in New Haven. The clinic opened on November first

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Speaker 1: of that year, advertising its services specifically to married couples.

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Speaker 1: They saw ten patients on the first day in operation,

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Speaker 1: and they also held a press conference. Two days later,

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Speaker 1: police stopped by and Griswold helpfully told them all about

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Speaker 1: the work they were doing, the contraceptives they were providing,

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Speaker 1: the counseling that was available to patients, the literature they

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Speaker 1: had available, and the fact that they knew it was

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Speaker 1: all illegal. On June tenth, police returned with warrants for

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Speaker 1: Griswald and Buxton's arrest, and the clinic was shut down.

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Speaker 1: Griswald and Buxton stood trial, and their attorneys argued that

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Speaker 1: counseling married couples on the use of contraception was protected

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Speaker 1: free speech. The two were convicted and fined one hundred

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Speaker 1: dollars each, and after a series of appeals, their case

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Speaker 1: was before the US Supreme Court under Chief Justice Earl Warren.

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Speaker 1: Warren Court has come up several times on the show.

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Speaker 1: Earl Warren was Chief Justice when Loving versus Virginia, Brown

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Speaker 1: versus Board of Education, and Hernandez versus Texas were all decided.

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Speaker 1: He was also Chief Justice during Yates versus United States,

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Speaker 1: which we talked about in our episode on co Intel Pro.

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Speaker 1: We've also talked about his time as Governor of California

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Speaker 1: on a couple of episodes, including our two parter on

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Speaker 1: Executive Order ninety sixty six and the mass incarceration of

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Speaker 1: Japanese Americans during World War Two. We will get to

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Speaker 1: the Court's decision after we pause for a sponsor break.

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Speaker 1: On June seventh, nineteen sixty five, and a seven to

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Speaker 1: two ruling, the US Supreme Court issued its decision in

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Speaker 1: Griswold versus Connecticut, and it overturned Connecticut's anti contraception laws.

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Speaker 1: The justices who were part of the court authored multiple

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Speaker 1: opinions in this case. Justice William O. Douglas, who had

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Speaker 1: authored one of the descents in Poe versus Ullman, which

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Speaker 1: we read earlier, authored the majority opinion. Justice Arthur Goldberg

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Speaker 1: wrote a concurring opinion that was joined by Justice William J.

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Speaker 1: Brennan Junior and Chief Justice Warren, Justices John M. Harland

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Speaker 1: the Second and Byron White each issued their own concurring opinions,

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Speaker 1: and then Justices Hugo. Black and Potter Stewart dissented, as

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Speaker 1: they had also done in Poe versus Ullman, and each

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Speaker 1: of them wrote their own descents. The court found that

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Speaker 1: one Griswold and Buxton did have standing in this matter,

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Speaker 1: something that had been an issue in those earlier cases,

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Speaker 1: and the court also found that quote the Connecticut Statute

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Speaker 1: forbidding use of contraceptives violates the right of marital privacy,

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Speaker 1: which is within the p number of specific guarantees of

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Speaker 1: the Bill of Rights. So the easy part with that

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Speaker 1: is that the court found Connecticut's ban on contraousives to

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Speaker 1: be unconstitutional. But the rest of it is a little

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Speaker 1: trickier because a right to marital privacy isn't mentioned or

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Speaker 1: enumerated in the Constitution. Like we set up at the

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Speaker 1: very top of the show, substantive due process is the

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Speaker 1: idea that the courts can protect unenumerated rights, and in

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Speaker 1: Griswold versus Connecticut, the Court was arguing that the right

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Speaker 1: to privacy was found in the penumbra or the shadow

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Speaker 1: of other rights that are mentioned. The majority opinion referenced

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Speaker 1: a series of previous cases in which protected rights were

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Speaker 1: interpreted as being broader than what was spelled out in

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Speaker 1: the Constitution. For example, in Meyer versus State of Nebraska,

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Speaker 1: the Court had struck down a law mandating that children

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Speaker 1: be taught only in English through the eighth grade. The

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Speaker 1: court found that this violated the due process clause of

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Speaker 1: the Fourteenth Amendment, which says that no state shall quote

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Speaker 1: deprive any person of life, liberty, or property without due

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Speaker 1: process of law. In this case, a teacher in a

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Speaker 1: Lutheran school was teaching reading in German, and the court

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Speaker 1: found that even though the Fourteenth Amendment didn't reference things

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Speaker 1: like languages other than English, quote, his right thus to teach,

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Speaker 1: and the right of parents to engage him so to

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Speaker 1: instruct their children, we think are within the liberty of

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Speaker 1: the Amendment. The majority opinion in Griswold versus Connecticut then

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Speaker 1: ticked through a series of similar cases and their associated freedoms.

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Speaker 1: Like in earlier cases, the court had found that the

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Speaker 1: First Amendment protection of free speech also included the right

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Speaker 1: to read and to receive information. The court had also

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Speaker 1: described the First Amendment freedom to assemble as extending to

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Speaker 1: the freedom of association with other people. So assembly did

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Speaker 1: not just mean physically going to a meeting. It also

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Speaker 1: involved being affiliated with a group and expressing personal philosophies

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Speaker 1: through being a member of that group. Having been through

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Speaker 1: all of that, the major already opinion read quote. The

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Speaker 1: foregoing cases suggest that specific guarantees in the Bill of

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Speaker 1: Rights have p numbers formed by emanations from those guarantees

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Speaker 1: that help give them life and substance. Various guarantees create

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Speaker 1: zones of privacy. The right of association contained in the

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Speaker 1: penumber of the First Amendment is one, as we have seen.

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Speaker 1: The Third Amendment, in its prohibition against the quartering of

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Speaker 1: soldiers in any house in time of peace without the

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Speaker 1: consent of the owner, is another facet of that privacy.

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Speaker 1: The Fourth Amendment explicitly affirms the right of the people

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Speaker 1: to be secure in their persons, houses, papers, and effects

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Speaker 1: against unreasonable searches and seizures. The Fifth Amendment, in its

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Speaker 1: self incrimination clause, enables the citizens to create a zone

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Speaker 1: of privacy which government may not force him to surrender

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Speaker 1: to his detriment. The Ninth Amendment provides the enumeration in

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Speaker 1: the Constitution of certain rights shall not be construed to

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Speaker 1: deny or disparage others retained by the people. Yeah, that

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Speaker 1: last one basically means just because a specific right is

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Speaker 1: not mentioned in the Constitution, that doesn't mean that right

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Speaker 1: doesn't exist, like not saying every single right on the

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Speaker 1: planet has to be specifically named or it's not a

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Speaker 1: real thing. This decision went on to build the idea

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Speaker 1: of a zone of privacy that was specifically related to

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Speaker 1: a marital relationship. Quote. The present case then concerns a

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Speaker 1: relationship lying within the zone of privacy created by several

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Speaker 1: fundamental constitutional guarantees, And it concerns a law which, in

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Speaker 1: forbidding the use of contraceptives, rather than regulating their manufacture

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Speaker 1: or sale, seeks to achieve its goals by means having

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Speaker 1: a maximum destructive impact upon that relationship. It went on

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Speaker 1: to rhetorically ask, quote, would we allow the police to

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Speaker 1: search the sacred precincts of marital bedrooms for tell tale

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Speaker 1: signs of the use of contraceptives? The very idea is

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00:28:01,200 --> 00:28:05,160
Speaker 1: repulsive to the notions of privacy surrounding the marriage relationship.

430
00:28:05,880 --> 00:28:09,640
Speaker 1: So all those various concurring opinions agreed with the idea

431
00:28:09,680 --> 00:28:12,480
Speaker 1: that the right to privacy could be inferred from some

432
00:28:12,640 --> 00:28:15,600
Speaker 1: part of the Constitution. They just all differed a little

433
00:28:15,640 --> 00:28:19,000
Speaker 1: bit on exactly how or where. And then the two

434
00:28:19,200 --> 00:28:22,280
Speaker 1: dissenting justices made it clear that they did not like

435
00:28:22,320 --> 00:28:25,000
Speaker 1: this law either, even though they didn't find that there

436
00:28:25,119 --> 00:28:29,520
Speaker 1: was a constitutional reason to overturn it. Justice Hugo. Black's

437
00:28:29,760 --> 00:28:32,800
Speaker 1: read in part quote, I feel constrained to add that

438
00:28:32,840 --> 00:28:36,200
Speaker 1: the law is every bit as offensive to me as

439
00:28:36,200 --> 00:28:38,760
Speaker 1: it is to my brethren of the majority, and my

440
00:28:38,840 --> 00:28:42,720
Speaker 1: brothers Harlan White and Goldberg, who, reciting reasons why it

441
00:28:42,880 --> 00:28:47,840
Speaker 1: is offensive to them, hold it unconstitutional. Justice Potter Stewart

442
00:28:47,880 --> 00:28:50,600
Speaker 1: wrote in his dissent quote, I think this is an

443
00:28:50,760 --> 00:28:54,760
Speaker 1: uncommonly silly law. As a practical matter, the law is

444
00:28:54,880 --> 00:28:59,160
Speaker 1: obviously unenforceable except in the oblique context of the present case.

445
00:29:00,000 --> 00:29:02,920
Speaker 1: It's a philosophical matter. I believe the use of contraceptives

446
00:29:02,920 --> 00:29:05,920
Speaker 1: in the relationship of marriage should be left to personal

447
00:29:05,960 --> 00:29:10,160
Speaker 1: and private choice based upon each individual's moral, ethical, and

448
00:29:10,240 --> 00:29:14,200
Speaker 1: religious beliefs. As a matter of social policy, I think

449
00:29:14,240 --> 00:29:18,000
Speaker 1: professional counsel about methods of birth control should be available

450
00:29:18,040 --> 00:29:22,840
Speaker 1: to all, so that each individual's choice can be meaningfully made.

451
00:29:23,040 --> 00:29:25,320
Speaker 1: But we are not asked in this case to say

452
00:29:25,360 --> 00:29:28,840
Speaker 1: whether we think this law is unwise or even asinine.

453
00:29:29,320 --> 00:29:31,800
Speaker 1: We are asked to hold that it violates the United

454
00:29:31,840 --> 00:29:36,600
Speaker 1: States Constitution, and that I cannot do. The majority, though,

455
00:29:36,640 --> 00:29:39,920
Speaker 1: had found that it violated the Constitution, and by finding

456
00:29:40,000 --> 00:29:45,200
Speaker 1: Connecticut's anti contraception law unconstitutional, the Supreme Court made contraception

457
00:29:45,400 --> 00:29:50,200
Speaker 1: and contraceptive counseling legal nationwide in the context of married couples.

458
00:29:50,920 --> 00:29:54,400
Speaker 1: So this also struck down the anti contraception language in

459
00:29:54,480 --> 00:29:58,000
Speaker 1: the Comstock Act, which was still on the books. So

460
00:29:58,760 --> 00:30:02,280
Speaker 1: this was a victory in terms of access to contraception,

461
00:30:03,080 --> 00:30:07,440
Speaker 1: but it was definitely incomplete. Number One, it applied only

462
00:30:07,520 --> 00:30:10,800
Speaker 1: to married couples. The focus was on the idea that

463
00:30:10,880 --> 00:30:15,400
Speaker 1: privacy was intrinsic to a married relationship, so laws forbidding

464
00:30:15,400 --> 00:30:20,600
Speaker 1: contraceptive use or counseling for single people were unaffected. Number two,

465
00:30:20,920 --> 00:30:24,160
Speaker 1: This idea that there were p numbers creating zones of

466
00:30:24,200 --> 00:30:29,760
Speaker 1: privacy was immediately controversial. There were and continue to be

467
00:30:30,040 --> 00:30:33,080
Speaker 1: legal scholars who argue that this isn't really a thing,

468
00:30:33,600 --> 00:30:35,840
Speaker 1: and that this was faulty reasoning on the part of

469
00:30:35,880 --> 00:30:41,800
Speaker 1: the justices. Beyond that, there were people, particularly women's rights activists,

470
00:30:41,840 --> 00:30:45,680
Speaker 1: who raised concerns about this ruling's focus. There is no

471
00:30:45,880 --> 00:30:49,920
Speaker 1: constitutional guarantee of equal rights for women in the United States,

472
00:30:49,960 --> 00:30:52,760
Speaker 1: and at this point, the Equal Rights Amendment had not

473
00:30:52,880 --> 00:30:56,360
Speaker 1: yet been passed by Congress. As we discussed in our

474
00:30:56,400 --> 00:30:59,600
Speaker 1: previous episode on the Equal Rights Amendment. Even though Congress

475
00:30:59,760 --> 00:31:02,880
Speaker 1: did did eventually pass it, not enough states ratified it

476
00:31:02,920 --> 00:31:05,840
Speaker 1: by the deadline for it to become part of the Constitution.

477
00:31:06,760 --> 00:31:08,880
Speaker 1: So there were a lot of women in particular who

478
00:31:08,960 --> 00:31:11,960
Speaker 1: thought that the Court should have used a different reasoning,

479
00:31:12,200 --> 00:31:15,800
Speaker 1: like maybe one that interpreted the Fourteenth Amendment's equal Protection

480
00:31:16,000 --> 00:31:19,720
Speaker 1: and do process clauses as protecting a woman's right to

481
00:31:19,880 --> 00:31:23,840
Speaker 1: bodily autonomy. We recognize that not everyone who can get

482
00:31:23,880 --> 00:31:27,200
Speaker 1: pregnant is a woman, including transmen and non binary people,

483
00:31:27,240 --> 00:31:29,560
Speaker 1: and that there were also plenty of people living at

484
00:31:29,560 --> 00:31:32,080
Speaker 1: the time who were living outside the gender binary in

485
00:31:32,160 --> 00:31:35,200
Speaker 1: various ways, But really the focus of the response to

486
00:31:35,240 --> 00:31:38,560
Speaker 1: this in nineteen sixty five was on women. During research

487
00:31:38,600 --> 00:31:41,440
Speaker 1: for this episode, Tracy read a paper in the American

488
00:31:41,560 --> 00:31:45,240
Speaker 1: Historical Review. This suggested that this privacy angle might have

489
00:31:45,280 --> 00:31:48,520
Speaker 1: been influenced by the Wolfenden Report, which was published in

490
00:31:48,560 --> 00:31:52,680
Speaker 1: the UK in nineteen fifty seven. This report followed a

491
00:31:52,760 --> 00:31:57,480
Speaker 1: rise in convictions for breaking laws against homosexual behavior, including

492
00:31:57,680 --> 00:32:01,840
Speaker 1: convictions of some high profile men. A committee was formed

493
00:32:01,840 --> 00:32:05,880
Speaker 1: to investigate UK laws around homosexuality and sex work, and

494
00:32:05,920 --> 00:32:10,960
Speaker 1: it recommended decriminalization of homosexuality. In the words of that report,

495
00:32:11,120 --> 00:32:15,320
Speaker 1: their quote must remain a realm of private morality and immorality,

496
00:32:15,320 --> 00:32:19,560
Speaker 1: which is, in brief and crude terms, not the law's business.

497
00:32:20,760 --> 00:32:23,600
Speaker 1: But if this idea influenced the thought process of the

498
00:32:23,800 --> 00:32:27,440
Speaker 1: justices in Griswold versus Connecticut, it didn't make its way

499
00:32:27,440 --> 00:32:31,760
Speaker 1: into Supreme Court decisions about same sex relationships until much later.

500
00:32:32,520 --> 00:32:34,280
Speaker 1: As we said at the top of the show, the

501
00:32:34,360 --> 00:32:38,000
Speaker 1: Supreme Court decision in Griswold versus Connecticut and the reasoning

502
00:32:38,080 --> 00:32:40,920
Speaker 1: that was used to make that decision have become part

503
00:32:41,000 --> 00:32:44,040
Speaker 1: of a lot of other cases. In nineteen sixty nine,

504
00:32:44,120 --> 00:32:47,320
Speaker 1: the Supreme Court cited Griswald be Connecticut and its decision

505
00:32:47,360 --> 00:32:51,600
Speaker 1: in Stanley versus Georgia, which found that possession of obscene

506
00:32:51,600 --> 00:32:55,000
Speaker 1: materials was protected in part because of a right deprivacy.

507
00:32:55,400 --> 00:32:58,600
Speaker 1: In nineteen seventy two, the Court struck down a Massachusetts

508
00:32:58,720 --> 00:33:03,640
Speaker 1: law banning the distribution of contraceptives to unmarried people. Although

509
00:33:03,680 --> 00:33:06,440
Speaker 1: the question before the court was whether this law violated

510
00:33:06,440 --> 00:33:10,800
Speaker 1: the privacy standard established in Griswold versus Connecticut, the Court

511
00:33:10,840 --> 00:33:14,320
Speaker 1: found that it violated the Fourteenth Amendment Due process clause.

512
00:33:15,440 --> 00:33:18,400
Speaker 1: In nineteen seventy three, the Court issued its decision in

513
00:33:18,520 --> 00:33:21,840
Speaker 1: Roe versus Wade, finding the right to privacy established in

514
00:33:21,920 --> 00:33:25,120
Speaker 1: Griswold as being inherent in the due process clause of

515
00:33:25,160 --> 00:33:29,120
Speaker 1: the Fourteenth Amendment and also extending to a person's decision

516
00:33:29,240 --> 00:33:32,800
Speaker 1: to terminate a pregnancy. But the Court also ruled that

517
00:33:32,840 --> 00:33:36,040
Speaker 1: this right had to be balanced out with other concerns

518
00:33:36,120 --> 00:33:39,040
Speaker 1: related to protecting a person's health and to quote, the

519
00:33:39,080 --> 00:33:43,600
Speaker 1: potentiality of human life. In nineteen eighty six, the Supreme

520
00:33:43,680 --> 00:33:47,360
Speaker 1: Court cited Griswold versus Connecticut in its ruling in Bowers

521
00:33:47,440 --> 00:33:52,480
Speaker 1: versus Hardwick, which upheld a Georgia law banning sodomy. Although

522
00:33:52,480 --> 00:33:55,680
Speaker 1: attorneys had argued that sodomy was protected under the right

523
00:33:55,720 --> 00:33:59,480
Speaker 1: to privacy that was established in Griswold, the court disagreed.

524
00:34:00,280 --> 00:34:03,040
Speaker 1: This ruling was overturned in two thousand and three in

525
00:34:03,120 --> 00:34:06,040
Speaker 1: Lawrence versus Texas, which was related to both the right

526
00:34:06,080 --> 00:34:09,040
Speaker 1: to privacy and to the due process clause of the

527
00:34:09,040 --> 00:34:13,760
Speaker 1: Fourteenth Amendment. In twenty fifteen, the Court once again issued

528
00:34:13,760 --> 00:34:17,680
Speaker 1: a ruling that was partly underpinned by Griswold versus Connecticut,

529
00:34:17,800 --> 00:34:22,680
Speaker 1: and that was Obergefell versus Hodges. This decision recognized same

530
00:34:22,719 --> 00:34:26,440
Speaker 1: sex marriages as legal nationwide, and it cited Griswold at

531
00:34:26,480 --> 00:34:30,000
Speaker 1: several points, including the decision's description of marriage as a

532
00:34:30,080 --> 00:34:34,040
Speaker 1: right that's older than the Bill of Rights. And most recently,

533
00:34:34,280 --> 00:34:37,560
Speaker 1: the Court issued its decision in Dobbs versus Jackson Women's

534
00:34:37,560 --> 00:34:43,080
Speaker 1: Health Organization, overturning Roe v. Wade. This decision also overturned

535
00:34:43,160 --> 00:34:46,120
Speaker 1: Planned Parenthood v. Casey, in which the Court had upheld

536
00:34:46,239 --> 00:34:49,520
Speaker 1: Roe v. Wade and a constitutional right to abortion in

537
00:34:49,640 --> 00:34:55,120
Speaker 1: nineteen ninety two. The Court's opinion, written by Justice Samuel Alito,

538
00:34:55,120 --> 00:34:58,760
Speaker 1: noted that the Constitution makes no mention of abortion, something

539
00:34:58,840 --> 00:35:01,440
Speaker 1: also true of the right place to privacy established in

540
00:35:01,520 --> 00:35:05,600
Speaker 1: Griswold versus Connecticut. But in the Court's opinion, Roe versus

541
00:35:05,640 --> 00:35:09,160
Speaker 1: Wade was different from Griswold versus Connecticut because it did

542
00:35:09,200 --> 00:35:13,160
Speaker 1: not involve quote, the destruction of what Roe called potential life.

543
00:35:14,160 --> 00:35:18,440
Speaker 1: So the majority opinion in this case noted the connection

544
00:35:18,560 --> 00:35:21,719
Speaker 1: to several cases we just mentioned. There was Griswold, there

545
00:35:21,960 --> 00:35:25,920
Speaker 1: was Eisenstadt versus Baird, which is the one that overturned

546
00:35:25,920 --> 00:35:30,560
Speaker 1: the Massachusetts law barring contraception for unmarried people, and also Obergefell,

547
00:35:31,280 --> 00:35:34,200
Speaker 1: calling the fear that the Dobbs decision would apply to

548
00:35:34,200 --> 00:35:37,920
Speaker 1: those rulings as quote unfounded. But as we said at

549
00:35:37,920 --> 00:35:41,280
Speaker 1: the top of the show, in his concurring opinion, Clarence

550
00:35:41,280 --> 00:35:45,480
Speaker 1: Thomas wrote that future cases should reconsider rulings that have

551
00:35:45,600 --> 00:35:50,799
Speaker 1: relied on substantive due process, including Griswold, Lawrence, and Obergefell.

552
00:35:51,520 --> 00:35:58,280
Speaker 1: So that suggests otherwise that is Griswold versus Connecticut, which,

553
00:35:59,000 --> 00:36:02,239
Speaker 1: as I said of the tapish d working my way

554
00:36:02,280 --> 00:36:03,880
Speaker 1: through all that made it a lot easier for me

555
00:36:03,960 --> 00:36:08,120
Speaker 1: to understand what the logic had been behind the ruling

556
00:36:08,280 --> 00:36:16,520
Speaker 1: in Roe versus Weights. Thanks so much for joining us

557
00:36:16,560 --> 00:36:19,640
Speaker 1: on this Saturday. Since this episode is out of the archive,

558
00:36:19,680 --> 00:36:21,959
Speaker 1: if you heard an email address or a Facebook RL

559
00:36:22,080 --> 00:36:24,359
Speaker 1: or something similar over the course of the show, that

560
00:36:24,600 --> 00:36:28,560
Speaker 1: could be obsolete. Now our current email address is history

561
00:36:28,680 --> 00:36:33,200
Speaker 1: podcast at iHeartRadio dot com. You can find us all

562
00:36:33,239 --> 00:36:37,120
Speaker 1: over social media at Missed History, and you can subscribe

563
00:36:37,160 --> 00:36:41,320
Speaker 1: to our show on Apple podcasts, Google podcasts, the iHeartRadio app,

564
00:36:41,360 --> 00:36:46,960
Speaker 1: and wherever else you listen to podcasts. Stuff you Missed

565
00:36:47,000 --> 00:36:50,160
Speaker 1: in History Class is a production of iHeartRadio. For more

566
00:36:50,160 --> 00:36:54,560
Speaker 1: podcasts from iHeartRadio, visit the iHeartRadio app, Apple podcasts, or

567
00:36:54,600 --> 00:37:00,120
Speaker 1: wherever you listen to your favorite shows. H