WEBVTT - FB 106: An ‘Uncommonly Silly’ Law: How One Man’s Crusade Against Obscenity Resulted in Abortion Rights 0:00:03.320 --> 0:00:05.880 We all need a break from the constant cycle to 0:00:06.000 --> 0:00:10.280 learn something new, to gain new perspectives. The Great Courses 0:00:10.320 --> 0:00:13.200 Plus streaming service is an excellent resource to expand our 0:00:13.240 --> 0:00:16.000 knowledge on a variety of subjects or pick up a 0:00:16.040 --> 0:00:19.000 new hobby. I've been enjoying the Great Courses Plus while 0:00:19.040 --> 0:00:23.160 researching this season of flashback lectures like Playball, the Rise 0:00:23.160 --> 0:00:26.520 of Baseball is America's pastime, History of the Supreme Court, 0:00:26.760 --> 0:00:29.680 and Battlefield Europe have helped me connect the dots on 0:00:29.800 --> 0:00:33.479 several stories from history. Right now, they're giving our listeners 0:00:33.479 --> 0:00:37.040 a special limited time offer a free month of unlimited 0:00:37.040 --> 0:00:40.279 access to their entire library. Sign up now through our 0:00:40.360 --> 0:00:43.559 special U r L go to the Great Courses Plus 0:00:43.600 --> 0:00:47.680 dot Com slash as that's the Great Courses Plus dot 0:00:47.720 --> 0:00:51.440 Com slash o z y the Great Courses Plus dot 0:00:51.440 --> 0:01:01.600 Com slash. Aussie March, the United States was in the 0:01:01.600 --> 0:01:04.679 middle of a massive civil rights movement, but the U. S. 0:01:04.680 --> 0:01:07.080 Supreme Court was hearing a challenge to a law that 0:01:07.160 --> 0:01:10.640 was almost a century old. The case was called Griswold 0:01:10.720 --> 0:01:13.480 versus Connecticut. It concerned a ban on the use of 0:01:13.520 --> 0:01:17.399 all contraception in the state of Connecticut, even by married couples, 0:01:17.920 --> 0:01:20.440 and the lawyers attempting to defend the law that made 0:01:20.480 --> 0:01:23.240 it a crime to use birth control, Well, they had 0:01:23.240 --> 0:01:26.840 their work cut out for them. During oral arguments, Supreme 0:01:26.880 --> 0:01:30.280 Court Justice Potter Stewart grilled one of those lawyers about 0:01:30.280 --> 0:01:34.880 the purpose of that contraception ban. Well, now, what purpose? 0:01:35.280 --> 0:01:38.959 What is the police power? Purpose of Connecticut and telling 0:01:39.040 --> 0:01:42.160 married people, two people who were married to each other, 0:01:43.160 --> 0:01:47.440 that they could not use contraceptive The attorney responded that 0:01:47.480 --> 0:01:52.880 the purpose was to preserve morality. What kind of morality? What? What? What? 0:01:52.880 --> 0:01:57.280 What moral purposes? Well, it is not unheard of that 0:01:57.520 --> 0:02:02.200 the use of contraceptives themselves would be immoral. Certainly. He 0:02:02.280 --> 0:02:04.840 goes on from there, and the attorney kept digging himself 0:02:04.880 --> 0:02:07.680 a bigger hole. It was a tough task. He was 0:02:07.720 --> 0:02:10.520 trying to defend the somewhat archaic law with appeals to 0:02:10.520 --> 0:02:16.519 contemporary morality. You see, by nine only two states, including Connecticut, 0:02:16.680 --> 0:02:20.840 still outlawed contraception. Meanwhile, almost three quarters of the American 0:02:20.880 --> 0:02:25.360 public approved of making birth control available. The Connecticut ban was, 0:02:25.680 --> 0:02:29.480 as Justice Stewart himself put it, an uncommonly silly law. 0:02:35.280 --> 0:02:38.079 So what's the problem? The U S Supreme Court had 0:02:38.120 --> 0:02:41.560 no obvious way to do anything about it. There's nothing 0:02:41.560 --> 0:02:45.840 in the U. S. Constitution that directly addresses contraception, reproductive health, 0:02:46.120 --> 0:02:49.119 or family planning, so there's a less than solid legal 0:02:49.240 --> 0:02:52.960 rationale to overturn the Connecticut law. However silly it might 0:02:53.000 --> 0:02:56.399 have seemed, So what did the court do? They made 0:02:56.440 --> 0:03:00.080 one up, and that instance of judicial creativity had has 0:03:00.080 --> 0:03:03.240 affected the course of American law and politics for more 0:03:03.280 --> 0:03:16.359 than half a century. Welcome to Flashback, a podcast from Azzie. 0:03:16.639 --> 0:03:20.040 I'm Sean Braswell. This season of Flashback is all about 0:03:20.120 --> 0:03:24.200 unintended consequences, and in this episode we explore the often 0:03:24.320 --> 0:03:28.679 uneasy relationship between law and politics, between morality and a 0:03:28.800 --> 0:03:32.160 changing society. We'll see how the efforts to overturn a 0:03:32.320 --> 0:03:36.040 silly law led to an unexpected revolution, one that has 0:03:36.080 --> 0:03:42.080 had its own unintended consequences today. The years following the 0:03:42.160 --> 0:03:45.440 Civil War were a busy time in America, especially for 0:03:45.560 --> 0:03:49.640 social reformers. This is John Johnson, an emeritus professor of 0:03:49.720 --> 0:03:52.640 history from the University of Northern Iowa and the author 0:03:52.720 --> 0:03:56.800 of Griswold v. Connecticut, Birth Control and the Constitutional Right 0:03:56.880 --> 0:04:01.360 of Privacy. This was a very total period for reform 0:04:01.560 --> 0:04:07.480 from about eighteen seventy to nineteen or so, and the 0:04:07.520 --> 0:04:11.840 reform cut in many directions. Anti slavery reformers were looking 0:04:11.840 --> 0:04:15.000 for new causes after the war to pour their energy into. 0:04:15.480 --> 0:04:19.839 There was women's suffrage and voting rights prohibition, and within 0:04:19.920 --> 0:04:25.600 this context you have what you might call the conservative 0:04:26.440 --> 0:04:30.240 Comstock Laws. They were named after a prominent reformer named 0:04:30.240 --> 0:04:33.880 Anthony Comstock, a veteran of the Union Army. And Anthony 0:04:33.920 --> 0:04:37.000 Comstock was an interesting guy. He did not have an 0:04:37.000 --> 0:04:42.640 elective position. He was sort of a an activist. Comstock 0:04:42.680 --> 0:04:44.720 was a deeply religious man who had moved to New 0:04:44.800 --> 0:04:47.600 York City after the war. He was outraged at the 0:04:47.720 --> 0:04:52.440 vice he encountered, their saloons, flop houses, brothels. He also 0:04:52.480 --> 0:04:54.800 didn't like the sending of what he considered immoral and 0:04:54.880 --> 0:04:59.760 salacious material through the mail. This included pornography, obscene drawings 0:05:00.040 --> 0:05:04.680 and more. And in this so called immoral literature he 0:05:04.760 --> 0:05:09.560 included advocacy for birth control. Believe it or not, in 0:05:09.600 --> 0:05:13.719 the eighteen seventies, contraception was a controversial matter in America. 0:05:14.200 --> 0:05:19.839 It was religiously frowned upon, particularly in states like Connecticut, 0:05:19.880 --> 0:05:23.640 with a strong and Catholic population. So Comstock quits his 0:05:23.720 --> 0:05:26.479 job selling dry goods and convinces the New York Y 0:05:26.560 --> 0:05:29.400 m c A to support his full time one man 0:05:29.400 --> 0:05:33.320 crusade to bolster obscenity laws across the nation. He called 0:05:33.360 --> 0:05:36.720 his new outfit the New York Society for the Suppression 0:05:36.760 --> 0:05:41.000 of Vice, and it worked. Comstock convinced Congress to pass 0:05:41.080 --> 0:05:47.400 the Comstock Act in eighteen seventy three. A number of 0:05:47.440 --> 0:05:50.760 states passed their own Comstock laws restricting the use and 0:05:50.839 --> 0:05:54.960 distribution of birth control. Anthony Comstock even convinced Congress to 0:05:55.000 --> 0:05:57.680 appoint him as a Special Inspector of the Post Office 0:05:58.000 --> 0:06:00.360 so that he could ferret out of scene material eels. 0:06:00.800 --> 0:06:03.960 He conducted his own raids. The first year, he traveled 0:06:03.960 --> 0:06:07.159 over twenty three thousand miles across the country and sees 0:06:07.240 --> 0:06:11.080 over sixty tho condoms and diaphragms. He was the elliott 0:06:11.160 --> 0:06:14.680 Ness of birth control. But not many Americans were as 0:06:14.760 --> 0:06:22.080 enthusiastic about following the new law as Comstock was. The 0:06:22.200 --> 0:06:26.120 laws themselves, which were the product of the culture, probably 0:06:26.160 --> 0:06:29.760 didn't have a whole lot of deterred effect. Over the 0:06:29.800 --> 0:06:33.920 next half century, most states repealed their Comstock laws. More 0:06:33.960 --> 0:06:38.000 than sevent of Americans supported birth control, and only two states, 0:06:38.160 --> 0:06:41.560 Connecticut and Massachusetts, still had the laws on the books. 0:06:42.000 --> 0:06:45.560 In Connecticut, many attempts at repealing the state's Comstock law 0:06:45.640 --> 0:06:49.040 were made, and I think there were over twenty attempts, 0:06:49.760 --> 0:06:54.880 but the resistance, particularly of the Roman Catholic Church in Connecticut, 0:06:55.480 --> 0:07:01.560 was determinative in keeping the laws on the books, and 0:07:01.600 --> 0:07:04.719 they succeeded at least until the Church and almost a 0:07:04.800 --> 0:07:08.839 century of legal and political inertia, met one very determined woman. 0:07:10.120 --> 0:07:16.760 She was a very talented lady. She was a singer, 0:07:17.120 --> 0:07:21.000 and for her early adulthood she spent time in France. 0:07:21.480 --> 0:07:25.000 In nineteen fifty, the clerical worker and medical technologist named 0:07:25.000 --> 0:07:28.480 to Stell Griswold moved to New Haven, Connecticut with her husband. 0:07:28.920 --> 0:07:34.720 She was a small woman, vivacious, she described as feisty. 0:07:34.760 --> 0:07:37.960 They had returned home to Connecticut because Griswold's mother was ill, 0:07:38.520 --> 0:07:41.080 and by pure chance turned out that she and her 0:07:41.160 --> 0:07:46.800 husband lived literally right next door to the Planned Parenthood 0:07:46.840 --> 0:07:51.360 League of Connecticut, and the position of executive director happened 0:07:51.360 --> 0:07:54.240 to be open. So the fifty year old Griswold applied, 0:07:54.640 --> 0:07:58.560 but she didn't know anything. By her own testimony, she 0:07:58.600 --> 0:08:01.600 didn't know much about birth country role. I don't think 0:08:01.640 --> 0:08:05.320 she had even seen a diaphragm when she interviewed for 0:08:05.360 --> 0:08:08.920 the job. Griswold got the job, and she immediately discovered 0:08:08.920 --> 0:08:12.440 how challenging it would be. Connecticut's Comstock law was the 0:08:12.480 --> 0:08:15.640 most restrictive in the country. It made using contraception at 0:08:15.760 --> 0:08:19.360 crime and prohibited groups like Planned Parenthood from distributing it 0:08:19.560 --> 0:08:23.000 or recommending it. This is Mary Ziggler, a law professor 0:08:23.040 --> 0:08:25.880 at Florida State University and the author of the brand 0:08:25.880 --> 0:08:29.400 new book Abortion and the Law of America. But Connecticut 0:08:29.440 --> 0:08:32.880 was pretty much alone at the time in preventing married 0:08:32.880 --> 0:08:35.839 couples from even using first controls. This was still the 0:08:35.920 --> 0:08:39.480 nineteen fifties, before the birth control pill. The diaphragm was 0:08:39.520 --> 0:08:42.439 the most commonly prescribed form of contraception at the time. 0:08:42.960 --> 0:08:46.760 Some called it quote the rich woman's secret. The Connecticut 0:08:46.840 --> 0:08:49.360 legislature would not repeal the law, and to get the 0:08:49.400 --> 0:08:52.679 courts to address it required a lawsuit. The only problem 0:08:52.800 --> 0:08:56.720 was the Connecticut law wasn't really being enforced, so to 0:08:56.800 --> 0:08:59.360 get Griswold to the court required more than just a 0:08:59.440 --> 0:09:03.240 law that still Griswold thought was unconstitutional. It also required 0:09:03.320 --> 0:09:07.720 some kind of ingenuousness when it came to getting arrested 0:09:08.120 --> 0:09:10.760 in trouble, showing that this law actually had some kind 0:09:10.800 --> 0:09:14.560 of teeth. So in nineteen sixty one, Griswold and a colleague, 0:09:14.679 --> 0:09:17.880 ductor Lee Buxton, decided they would try to test the law. 0:09:18.400 --> 0:09:22.080 Griswold announced publicly that her clinic would start providing contraceptive 0:09:22.120 --> 0:09:25.800 services to married women. This is a stell, Griswold in 0:09:25.800 --> 0:09:30.840 a nineteen sixty two interview with CBS News, describing the situation, Well, 0:09:30.880 --> 0:09:33.800 I think it's very evident that the allow is unenforceable. 0:09:34.080 --> 0:09:36.640 I think if you had a policeman under every bed 0:09:36.760 --> 0:09:39.600 in the state of Connecticut, they still could not prove anything. 0:09:40.040 --> 0:09:44.640 John Johnson again, and so they began to advertise that 0:09:45.120 --> 0:09:50.880 birth control was being practiced and advice was given in 0:09:51.640 --> 0:09:57.360 the facility in New Haven, Connecticut. They literally called upon 0:09:57.440 --> 0:10:02.240 the police to arrest a steal Griswold. A neighbor of 0:10:02.240 --> 0:10:06.200 Griswold's named James Morris, filed the complaint. Morris was a 0:10:06.280 --> 0:10:09.720 Catholic and the night manager at a rental car agency. 0:10:09.840 --> 0:10:14.000 He told local prosecutors quote every moment that clinic stays open, 0:10:14.360 --> 0:10:18.199 another child is not born. CBS News interviewed Morris in 0:10:18.280 --> 0:10:24.320 nineteen sixty two as well against birth control because it's immoral. 0:10:24.559 --> 0:10:28.360 It's the same as prostitution or abortion or in any 0:10:28.640 --> 0:10:32.640 other than those I moral things. Of course, getting arrested 0:10:32.760 --> 0:10:36.319 is just what is Stelle Griswold and Lee Buxton wanted arrest. 0:10:36.320 --> 0:10:39.679 Warrants were issued and Griswold dressed in her Sunday best 0:10:39.920 --> 0:10:43.240 surrender to authorities that the agreed upon time. So two 0:10:43.280 --> 0:10:47.079 detectives showed up, and apparently Steal was very happy to 0:10:47.120 --> 0:10:51.559 see them, and they had a very cordial conversation. Griswold 0:10:51.559 --> 0:10:54.120 and Buxton were arrested, and a court found them guilty 0:10:54.160 --> 0:10:57.720 and imposed a one fine. The case was appealed and 0:10:57.760 --> 0:11:00.520 eventually went to the Connecticut Supreme Court and then the 0:11:00.600 --> 0:11:04.240 United States Supreme Court. Chris Wald finally had her chance 0:11:04.280 --> 0:11:06.960 to end the stubborn Connecticut law once and for all, 0:11:07.559 --> 0:11:09.840 but her case would wind up doing so much more 0:11:09.960 --> 0:11:25.680 than just that. That's next. Do you have an interesting 0:11:25.720 --> 0:11:29.480 tale about unintended consequences from history or your own life, 0:11:30.120 --> 0:11:32.880 Please share it with us By emailing flashback at Aussie 0:11:32.960 --> 0:11:47.120 dot com. That's flashback at o Z e y dot com. 0:11:47.120 --> 0:11:49.240 Not one of the nine men sitting on the U. S. 0:11:49.240 --> 0:11:52.760 Supreme Court thought that Connecticut's ban was a sensible law. 0:11:53.280 --> 0:11:58.400 John Johnson. This was considered sort of archaic and demeaning, 0:11:59.120 --> 0:12:03.480 and it was crudely drawn, and it was ninety years old. 0:12:04.440 --> 0:12:07.600 So it was a question of what grounds with the 0:12:07.600 --> 0:12:11.720 Supreme Court find to rule the law and constitutional. Chief 0:12:11.760 --> 0:12:14.360 Justice Earl Warren assigned the opinion in the case to 0:12:14.480 --> 0:12:17.760 Justice William O. Douglas. The sixty six year old Douglass 0:12:17.800 --> 0:12:20.080 was from Washington State and had been on the Court 0:12:20.120 --> 0:12:22.960 for over a quarter century. He was a world traveler 0:12:22.960 --> 0:12:29.199 and an outdoorsman. He was not your average Supreme Court justice. No. 0:12:29.520 --> 0:12:36.400 For everybody's abridge guessing game, What My Mine? This was 0:12:36.400 --> 0:12:40.080 a popular fifties game show. The contestants were blindfolded and 0:12:40.160 --> 0:12:43.040 asked to guess the identity of a mystery celebrity guest. 0:12:43.720 --> 0:12:48.719 One of those guests was Justice Douglas. This is a gentleman. Yes, 0:12:50.120 --> 0:13:03.000 do you work? Do you work for profit making organization? No? 0:13:04.200 --> 0:13:07.520 Justice Douglas was also something of a ladies man, sometimes 0:13:07.559 --> 0:13:10.440 known as wild Bill. He was the first Supreme Court 0:13:10.520 --> 0:13:14.400 justice to have been divorced, and not just once three times. 0:13:15.040 --> 0:13:17.600 The year after the Griswold decision, he would marry his 0:13:17.679 --> 0:13:21.840 fourth wife. She was twenty three years old. Needless to say, 0:13:22.000 --> 0:13:23.680 many of the clerks on the Court felt it to 0:13:23.679 --> 0:13:26.800 be deeply ironic that the justice with numerous extra marital 0:13:26.880 --> 0:13:29.400 affairs was to be the one in Griswold given the 0:13:29.480 --> 0:13:32.800 task of upholding the right to privacy in the sanctity 0:13:32.840 --> 0:13:36.240 of the marital bedroom. Douglas wrote the first draft of 0:13:36.280 --> 0:13:38.880 the Court's opinion in less than a week. It was 0:13:38.920 --> 0:13:42.600 six pages, handwritten, double spaced on a yellow legal pad. 0:13:43.240 --> 0:13:45.480 When his draft was circulated to the other chambers of 0:13:45.520 --> 0:13:48.400 the Court, the clerks and other justices were shocked at 0:13:48.440 --> 0:13:51.439 how thin it was. The legal argument left a little 0:13:51.480 --> 0:13:55.880 to be desired as well. What Justice Douglas would ultimately 0:13:56.000 --> 0:14:02.320 right is that the Connecticut law violated the right of 0:14:02.360 --> 0:14:07.960 privacy of Stale Griswold. The Court had never explicitly found 0:14:08.080 --> 0:14:12.559 a right to privacy in the Constitution. What Douglas did 0:14:13.160 --> 0:14:16.559 was in some ways very creative, in other ways that 0:14:16.720 --> 0:14:20.040 his critics said he was very sloppy, Douglas argued in 0:14:20.040 --> 0:14:23.400 his opinion that the Connecticut law quote violates the right 0:14:23.440 --> 0:14:26.000 of marital privacy, which is within the p number of 0:14:26.080 --> 0:14:29.760 specific guarantees of the Bill of Rights, and these pannumbra 0:14:29.840 --> 0:14:35.240 are these emanations sort of cast a privacy shadow. So 0:14:35.480 --> 0:14:39.800 it is a really important case for a couple of reasons. 0:14:40.000 --> 0:14:43.280 April Dawson is a constitutional law professor at North Carolina 0:14:43.360 --> 0:14:48.080 Central University School of Law. One uh the court specifically 0:14:48.080 --> 0:14:52.000 found a right to privacy and the marital relations and 0:14:52.080 --> 0:14:55.320 concluded that the state could not restrict a married couple's 0:14:55.400 --> 0:15:01.040 ability to be counseled on and use contraceptives. But more broadly, 0:15:01.320 --> 0:15:05.920 it's important because the court for the first time really 0:15:06.040 --> 0:15:11.080 explicitly found a right to privacy in the Constitution, even 0:15:11.120 --> 0:15:15.440 though the right to privacy is not explicitly stated within 0:15:15.600 --> 0:15:18.920 the text of the Constitution. The court delivered its opinion 0:15:18.960 --> 0:15:23.440 to the public on June seven, the day before Estelle 0:15:23.440 --> 0:15:27.280 Griswold's sixty five birthday. Near the end of the majority opinion, 0:15:27.480 --> 0:15:30.960 the thrice divorced Douglas opined about the sanctity of marriage. 0:15:32.400 --> 0:15:36.560 Marriage is a coming together for better or worse, hopefully 0:15:36.720 --> 0:15:41.040 enduring an intimate to the degree of being sacred. It 0:15:41.160 --> 0:15:44.120 is an association that promotes a way of life, not 0:15:44.520 --> 0:15:49.760 causes a harmony in living, not political faiths. It is 0:15:49.840 --> 0:15:53.800 an association for as noble a purpose as any involved 0:15:53.840 --> 0:15:57.920 in our prior decisions. It was a beautiful sentiment, and 0:15:58.000 --> 0:16:00.440 in the years after Griswold he would often hear that 0:16:00.480 --> 0:16:04.520 passage read aloud at wedding ceremonies across the country, and 0:16:04.640 --> 0:16:08.000 so for the first time in nearly a century, Connecticut 0:16:08.000 --> 0:16:11.520 spouses engaged in legal protected sex, and the right to 0:16:11.560 --> 0:16:15.720 privacy was born in America. Meanwhile, the Stelle Griswold did 0:16:15.720 --> 0:16:18.680 what so many older Northerners did at the time. She 0:16:18.800 --> 0:16:21.800 retired to an air conditioned home in Fort Myers, Florida, 0:16:22.080 --> 0:16:27.000 where she lived until her death in But the controversy 0:16:27.040 --> 0:16:30.040 surrounding the Griswold case began before the ink on the 0:16:30.080 --> 0:16:33.240 opinion was even dry. The critics would say, well, it 0:16:33.320 --> 0:16:37.200 may be very important, but it's not grounded in the U. S. Constitution, 0:16:37.520 --> 0:16:41.960 And it was an easy decision to criticize if you 0:16:42.480 --> 0:16:47.560 didn't like the analysis of Justice Douglas. For many, the 0:16:47.680 --> 0:16:51.360 ends of eliminating an uncommonly silly law did not justify 0:16:51.440 --> 0:16:54.520 the Warren Court's judicial means for doing so. If you 0:16:54.600 --> 0:16:58.960 agreed with the Warren courts leanings, you were willing to 0:16:59.000 --> 0:17:01.520 accept the decision. If you were critical of the Warrant 0:17:01.560 --> 0:17:05.520 Court for going too far, you saw this as a 0:17:05.640 --> 0:17:11.080 sloppy decision that created a right that it wasn't clearly there. 0:17:11.560 --> 0:17:14.520 This is Daniel Ermine, a constitutional law scholar at the 0:17:14.560 --> 0:17:20.080 Northeastern School of Law. Griswald is the beginning, but certainly 0:17:20.119 --> 0:17:26.440 not the end, of a huge debate over whether unspoken 0:17:26.840 --> 0:17:33.720 or what lawyers call unenumerated rights get protection in the Constitution. 0:17:34.440 --> 0:17:37.520 No one knew right after Griswold quite what the consequences 0:17:37.560 --> 0:17:40.840 of this broad legal right would be. Mary Ziggler again, 0:17:41.320 --> 0:17:43.680 one of the questions coming out of Griswold was how 0:17:43.720 --> 0:17:46.520 broad the s right to privacy reached? Pretty far, as 0:17:46.560 --> 0:17:49.480 it turned out. Eight years after Griswold, the Supreme Court 0:17:49.520 --> 0:17:53.840 announced another big decision, good evening and a landmark ruling. 0:17:53.880 --> 0:17:58.479 The Supreme Court today legalized abortions. The majority and cases 0:17:58.520 --> 0:18:00.919 from Texas and Georgia said that a decision to end 0:18:01.000 --> 0:18:04.280 up pregnancy during the first three months belongs to the 0:18:04.359 --> 0:18:08.159 woman and her doctor, not the government. Well, Roe versus 0:18:08.160 --> 0:18:10.480 Wade is just a bomb that went off in terms 0:18:10.480 --> 0:18:13.800 of constitutional law. This is Mark Kindy, the law professor 0:18:13.840 --> 0:18:15.960 at Drake Law School and the director of the Drake 0:18:16.040 --> 0:18:19.760 Constitutional Law Center. In the famous case of Roe v. Wade, 0:18:20.040 --> 0:18:22.360 the U. S. Supreme Court found the right to privacy 0:18:22.400 --> 0:18:26.720 identified in Griswold applied in other family planning circumstances, and 0:18:26.760 --> 0:18:29.800 when it got to abortion, they found that although there 0:18:29.840 --> 0:18:32.120 were certainly an interest the state had in the feat 0:18:32.240 --> 0:18:34.320 is at the end of the day, that right to 0:18:34.440 --> 0:18:37.359 privacy that an individual woman has with regard to what 0:18:37.520 --> 0:18:40.879 happens to her body is something that exists. It's a 0:18:40.920 --> 0:18:45.800 fundamental constitutional right. The decision in Row was immediately polarizing. 0:18:46.119 --> 0:18:49.119 CBS News captured the opposing viewpoints on the day the 0:18:49.200 --> 0:18:52.520 ruling was handed down. This is Dr Alan Gutmacher of 0:18:52.560 --> 0:18:59.480 Planned Parenthood on that broadcast. I think that to raid 0:18:59.560 --> 0:19:02.480 the dignity dear woman and give her freedom of choice 0:19:02.520 --> 0:19:06.560 in this area his extraordinary event. And I think that 0:19:07.200 --> 0:19:11.280 January nineteen seventy there would be an historic day. And 0:19:11.359 --> 0:19:14.439 on the other side, James McK a priest with the U. S. 0:19:14.480 --> 0:19:18.560 Catholic Conference. In this instance, the Supreme Court has withdrawn 0:19:18.760 --> 0:19:22.280 protection for the human rights of unborn children, and it 0:19:22.400 --> 0:19:28.480 is teaching people that abortion is a rather innocuous procedure, 0:19:28.560 --> 0:19:32.760 provided that there are proper legal safeguards. These strongly held 0:19:32.840 --> 0:19:36.720 opposing views on abortion have now defined American political culture 0:19:36.760 --> 0:19:39.640 for nearly half a century, and the right to privacy 0:19:39.680 --> 0:19:43.359 found in Griswold has been extended to areas beyond just abortion. 0:19:43.920 --> 0:19:48.800 Mark Kendy, you know what happened after Rowe was basically 0:19:48.840 --> 0:19:52.560 the Court actually continued to find this right to privacy 0:19:52.640 --> 0:19:55.480 to be even broader. Some of these extensions to privacy 0:19:55.480 --> 0:19:58.440 are favored by liberals, such as the Court's recent protection 0:19:58.480 --> 0:20:03.160 of gay marriage, and some push in a more conservative direction. Certainly, 0:20:03.600 --> 0:20:06.399 you know, parents claim rights to be able to do 0:20:06.520 --> 0:20:09.879 things like homeschooling of their children. They claim rights to 0:20:09.960 --> 0:20:14.000 be able to sometimes pull their children from public schools 0:20:14.080 --> 0:20:16.920 when it comes to the point where public schools engage 0:20:16.920 --> 0:20:22.120 in sex education. So it encompasses parental rights, it encompasses 0:20:22.160 --> 0:20:25.879 medical care, and it even you know, touches on religious issues. 0:20:27.960 --> 0:20:30.879 The century long reaction to the Comstock Laws of the 0:20:30.960 --> 0:20:35.879 nineteenth century illustrates how legislative overreach can backfire to create 0:20:35.960 --> 0:20:38.680 rights that would have shocked the original proponents of a law. 0:20:39.359 --> 0:20:42.800 Just think, how would the Chase crusader Anthony Comstock have 0:20:42.960 --> 0:20:45.720 felt if he knew his labors would have ultimately resulted 0:20:45.760 --> 0:20:49.080 in legalized abortion? But can the same be said of 0:20:49.080 --> 0:20:52.359 the Griswold case. Up next, a look at some of 0:20:52.400 --> 0:21:08.800 the crazy, unexpected consequences unleashed by Griswald's privacy revolution. Enjoying 0:21:08.840 --> 0:21:12.320 this episode, check out the Great Courses Plus streaming service. 0:21:12.560 --> 0:21:15.080 It's an excellent resource to expand our knowledge on a 0:21:15.160 --> 0:21:18.760 variety of subjects, like the establishment by the Supreme Court 0:21:18.800 --> 0:21:22.400 of the right to privacy. In researching this episode of Flashback, 0:21:22.520 --> 0:21:25.080 I dove deep into the lectures, history of the Supreme 0:21:25.119 --> 0:21:29.280 Court and law school for everyone constitutional law. With the 0:21:29.280 --> 0:21:32.040 Great Courses Plus app, we can keep our minds active, 0:21:32.560 --> 0:21:36.320 escape into this vast world of information. Watch or listen 0:21:36.600 --> 0:21:41.000 at any time anywhere. Right now, they're giving our listeners 0:21:41.000 --> 0:21:44.320 a special, limited time offer, a free month of unlimited 0:21:44.359 --> 0:21:47.600 access to their entire library. Sign up now through our 0:21:47.640 --> 0:21:50.439 special U r L go to the Great Courses Plus 0:21:50.520 --> 0:21:54.320 dot com slash AUSI that's the Great Courses plus dot 0:21:54.359 --> 0:21:58.080 Com slash o z y, the Great Courses plus dot 0:21:58.080 --> 0:22:06.679 Com slash AUSI. These days, Griswold v. Connecticut is not 0:22:06.760 --> 0:22:11.080 all that controversial, Mary Ziggler. But Griswold itself has become 0:22:11.160 --> 0:22:14.320 what lawyers called part of the legal canon, in the 0:22:14.400 --> 0:22:18.680 sense that you can't really say Griswold was wrong anymore. 0:22:19.080 --> 0:22:21.920 But there's one place that Griswold and the still controversial 0:22:22.000 --> 0:22:26.040 Roe v. Wade decision continue to get raised. Daniel Rman Again. 0:22:26.400 --> 0:22:31.600 The debates that occurred in grizz Wald and Roe v. 0:22:31.840 --> 0:22:37.160 Wade set the stage for an entire generation of Supreme 0:22:37.200 --> 0:22:41.000 Court confirmation hearings, and few hearings went by without a 0:22:41.040 --> 0:22:44.080 senator questioning the Supreme Court nominee about his or her 0:22:44.200 --> 0:22:47.240 views on the right to privacy established in Griswold. It 0:22:47.480 --> 0:22:53.400 really was the centerpiece of Robert Bork's confirmation hearing during 0:22:53.440 --> 0:22:59.080 the summer of Robert Bork was an outspoken conservative jurist. 0:22:59.560 --> 0:23:02.080 During the hearing, you can hear the subtle disdain he 0:23:02.160 --> 0:23:05.520 had for Justice Douglas's opinion in gris Wald and Justice 0:23:05.560 --> 0:23:09.840 Douglas entered ended that opinion with a rather uh eloquent 0:23:10.160 --> 0:23:12.399 statement of how awful it would be to have the 0:23:12.440 --> 0:23:16.920 police pounding into the marital bedroom. And it would be awful, 0:23:17.119 --> 0:23:19.320 and it would never happen because there is a Fourth 0:23:19.359 --> 0:23:23.280 Amendment and the police simply could not get into the 0:23:23.320 --> 0:23:25.719 bedroom without a warrant. What magistrate is going to give 0:23:25.720 --> 0:23:28.280 the police a warrant to go into search for signs 0:23:28.280 --> 0:23:30.280 of use of contraceptives. I mean, it's a holy it's 0:23:30.280 --> 0:23:36.679 a holy, bizarre and imaginary case. Now let me say this, 0:23:37.200 --> 0:23:41.359 yeld at that point, just for classification, do you recognize 0:23:41.400 --> 0:23:45.119 that second voice? Hint, it's a balding senator from the 0:23:45.160 --> 0:23:48.560 state of Delaware who is currently the Democratic nominee for president. 0:23:48.920 --> 0:23:54.280 And there's a famous exchange between the young chairman of 0:23:54.320 --> 0:23:59.440 the Judiciary Committee, Joe Biden, and Robert Burke about the 0:23:59.480 --> 0:24:04.240 implicate patitions of Burke's view that there is not a 0:24:04.359 --> 0:24:09.720 fundamental right to marital privacy or the right to contraception. 0:24:10.119 --> 0:24:14.440 That was that issue in Griswold. If they had evidence 0:24:14.480 --> 0:24:16.399 of the crime was being committed, how are they going 0:24:16.440 --> 0:24:21.960 to get evidence that a couple of tap, wire tap, 0:24:23.200 --> 0:24:25.320 wire tap, you mean to say that is going to 0:24:25.400 --> 0:24:27.560 authorize a wire tap to find out of a couple 0:24:27.600 --> 0:24:34.280 of using contraceptives. They unbelievable, unbelievable. Things changed a bit 0:24:34.320 --> 0:24:37.760 after the Senate refused to confirm Bork. After Bork was 0:24:37.840 --> 0:24:42.480 voted down, You've just had a series of nominees by 0:24:42.560 --> 0:24:47.240 both parties who have said Row v. Wade is precedent, 0:24:48.600 --> 0:24:52.920 and they have given platitudes that would make most first 0:24:53.000 --> 0:24:56.760 year law students blush. And that continues to this day. 0:24:56.960 --> 0:25:00.240 I said that it's settled as a precedent of the 0:25:00.240 --> 0:25:04.280 Supreme Court, entitled to respect under principles of starry decisives. 0:25:04.880 --> 0:25:07.679 That's Brett Kavanagh, the last Supreme Court justice to be 0:25:07.720 --> 0:25:11.760 confirmed in his Senate hearing. One of the important things 0:25:11.800 --> 0:25:15.080 to keep in mind about Roe v. Wade is that 0:25:15.160 --> 0:25:20.399 it has been reaffirmed many times over the past forty 0:25:20.480 --> 0:25:23.880 five years. As you know, even if Supreme Court nominees 0:25:23.880 --> 0:25:26.760 won't go near abortion or the right to privacy, it 0:25:26.800 --> 0:25:30.080 has become a hot button political issue, especially on the right. 0:25:30.680 --> 0:25:35.080 Mark Kindy, It's just extraordinary how influential it's been in 0:25:35.160 --> 0:25:41.040 terms of energizing the Republican Party, for example, especially evangelicals 0:25:41.119 --> 0:25:45.200 within the Republican Party. Daniel Irmin again Roe v. Wade 0:25:45.240 --> 0:25:51.320 generated a politically powerful right to life movement that has 0:25:51.359 --> 0:25:54.840 been with us since the nineteen seventies and has profoundly 0:25:54.880 --> 0:26:00.160 affected national politics ever since. And it has impact did 0:26:00.160 --> 0:26:02.960 the political sphere more than you would think. We know 0:26:03.440 --> 0:26:08.160 that in two thousand eight, Roe v. Wade determined John 0:26:08.240 --> 0:26:12.679 McCain's choice of a vice presidential nominee. He wanted to 0:26:12.760 --> 0:26:17.160 choose Joe Lieberman as a unity ticket, and he got 0:26:17.240 --> 0:26:22.040 the news that every state Republican party chair would boycott 0:26:22.080 --> 0:26:25.200 the convention and not endorse him. He ended up picking 0:26:25.200 --> 0:26:29.000 Sarah Palin, who was known for being against Roe v. Wade, 0:26:29.440 --> 0:26:32.439 and we all know how that turned out. But it 0:26:32.520 --> 0:26:36.439 was the steen US presidential election where the abortion and 0:26:36.560 --> 0:26:39.880 right to privacy issue really had the biggest political impact. 0:26:40.000 --> 0:26:46.119 In exit polls told us that about twent of voters 0:26:46.680 --> 0:26:51.199 thought the Supreme Court was a very important factor in 0:26:51.280 --> 0:26:57.159 their vote, and of those voters, it was about six 0:26:57.200 --> 0:27:01.479 to four Trump versus Clinton. So if you do the 0:27:01.520 --> 0:27:05.600 math and you remember that Trump won the electoral College 0:27:05.680 --> 0:27:11.520 because of narrow victories in Wisconsin, Michigan, and Pennsylvania, I 0:27:11.560 --> 0:27:16.119 think you can make a straightforward case that concern about 0:27:16.160 --> 0:27:20.240 the Supreme Court and whether it would eventually overturn Roe v. Wade. 0:27:20.240 --> 0:27:24.719 And the Trump presidency may have delivered his electoral college 0:27:24.760 --> 0:27:27.960 victory and the Supreme Court will soon have an opportunity 0:27:28.040 --> 0:27:31.520 to overturn or limit Roe v. Wade. April Dawson's So, 0:27:31.920 --> 0:27:36.880 the Supreme Court is currently deciding a case right now 0:27:37.000 --> 0:27:40.480