Bioethics, healthcare policy, and related issues.
Many blogs have noted that yesterday was the 40th anniversary of the landmark Supreme Court decision in Girswold v. Connecticut – the case that established the right of married couples to use birth control. The timeline of consequences of that case deserves to be filled in.
1965 Griswold established that the laws in many states that actually made it illegal to use any means to prevent, control, or plan conception even by married couples were invalid. Griswold introduced the fateful “penumbra of privacy” around fundamental Constitutional rights – an area in which the state may not intrude, because it is central to, and a necessary prerequisite of, the exercise of other rights guanranteed by the Constitution.
specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy.
Incredibly enough, just 40 years ago it was actually against the law to try not to get pregnant, or to provide the means to do so, or even information and advice about doing so, to anyone, including married couples.
“Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”
“Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”
That’s how far into private lives the government went, as late as the mid-1960s. Griswold was Executive Director of Planned Parenthood in Connecticut, and was arrested for providing birth control advice. Her case established sexual freedom – within a very narrow sphere – as a fundamental human interest, recognized under the United States Constitution, for the first time. It applied only to married couples, and some of the justices explicitly grounded it in the state’s interest in protecting marriage itself:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. . . .
We deal with a right of privacy older than the Bill of Rights. Marriage is a coming together, for better or worse, hopefully enduring, and intimate to the degree of being sacred. . . .
[T]he rights to marital privacy and to marry and raise a family are . . . fundamental . . . .
Even so, for the first time the Court decisively took away from the states control over the most private decisions people could make about a defining area of their lives.
1972 Eisenstadt v. Baird extended the right to use contraception to non-married persons. This required divorcing sexual freedom from “the sanctity of marriage” – a huge step forward for privacy and autonomy rights.
[W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. . . .
[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
At the time of this case, in Massachusetts, “fornication” was a crime and married couples actually required a prescription from a doctor for contraceptives. Recall that this is 1972 – the height of the “sexual revolution” – 5 years after the “Summer of Love”. (This is, of course, Massachusetts, a sadly priest-ridden state where, until this year, you still couldn’t get a drink on Sunday, but even so . . . .) As late as 33 years ago, the state claimed the right to determine who was allowed control of their own sexuality, and treated sexual freedom as a restricted drug, dispensable only upon a doctor’s order.
1972> Roe v. Wade – “the big one” – was decided only 9 months after the legalization of birth control for all citizens. It’s easy to forget how late in coming the latter was, and how closely linked all the great “privacy” decisions were.
Roe is too widely-discussed to cover in detail here. Let’s settle for this:
This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
2003 Lawrence v. Texas – the great Texas sodomy case, and the one that, arguably, initiated Justice Scalia’s descent into the gibbering anti-sexual psychotic he has become today. Lawrence found that the right to sexual freedom encompassed homosexuals as well as heterosexuals (and, obviously, unmarried persons, since that is one form of anti-gay discrimination Lawrence left untouched).
[The] penalties and purposes [of laws against gay sex], though, have . . . far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
These are perhaps the boldest and most humane words ever found in a Supreme Court opinion. Though this passage doesn’t exactly “ring” poetically, it expresses something profoundly inspirational: that human beings have human purposes that the law may not define or defile – that all people have a basic right to make their lives, and especially their relations with other persons, as they are moved to, and that where no one is hurt and no institution of the state is undermined, the state may not denigrate or intrude upon those relationships. Here the Court manages – briefly – to transcend the narrow limits of specifically-enumerated rights and “protected classes” (in fact, one of the complaints of Scalia’s deliciously pissy dissent is that gays have no rights because they are not a “protected class” like racial minorities) and assert a Constitutional place for a fundamental right arising from the nature of human lives themselves. That move was itself too limited, but deserves to be honored for what it was.
What is shocking about this timeline is how short it is. Only 40 years ago, states could and did criminalize any form of birth control, for anybody. That is, over 40% of US women now alive were born in a time when they could be jailed for attempting to control their fertility in any way (or even for having sex in a non-approved way). Over 50% of US women (and the vast majority of current adult women) were born at a time when it was illegal in at least some states for them to use birth control if they were single, and illegal in most states to end their unwanted pregnancies if they chose to do so. A large percentage of women now living went through some or all of their fertile years facing the possibility of criminal sanctions for attempting to control their own sexuality in ways male politicians did not approve of. And, of course, all gays and lesbians faced criminal sanctions – if not worse – for having sex of any kind, until just two years ago.
It is amazing to me that such a central, surpasaingly personal aspect of human life has been so hounded and so demonized – by our own government! – for so long and until so recently. It is amazing to me that people I know today – not to mention my own mother, and my older female friends – lived with this insanity, and the dangers and intrusions it imposed on them. It is amazing that the obvious personal liberty that encompasses an ordinary sexual life was not merely unavailable but a crime for people – a huge segment of our society today! – only a few years older than me.
That those things are no longer true is the legacy of Griswold. Every case above cites Griswold (but see the Roe opinion, Section VIII, for a list of a dozen non-sex cases that also cite a right to privacy, found in at least 4 different Constitutional amendments). That decision created the room for human freedom that grew, by logical necessity, to encompass almost every part of society. But what a fragile legacy it is! Every one of the rights just mentioned has been restricted in some ways since it was finally recognized, grudgingly, within my lifetime. Abortion is under constant assualt, and the limited rights to abortion estblished in Roe v. Wade have been scaled back significantly in later decisions. Gays were subject to years of restrictive rulings – notoriously Bowers v. Hardwick, which explicitly endorsed the same criminal sanctions Lawrence finally overturned and carved them into the Constitution for almost 20 long, ugly years, and which Scalia longingly cited in his enraged dissent from
I saw on another blog – and I’m sorry I can’t find it again to give credit for it – the best and most accurate summary of the situation. It was, essentially, this: “The people who made these laws are also still alive, and they remember what they were trying to do in harassing and jailing people for exercising their sexual rights. They’re still trying to go back to those days, which are not so very far behind us.”
Happy anniversary, indeed.
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