The foundational legal case of the sexual rights movement, including the right to an abortion, was decided this week (June 7) in 1965 when the U.S. Supreme Court, in Griswold v. Connecticut, ruled in favor of Estelle Griswold, who opened a birth control clinic in New Haven to test a Connecticut law prohibiting the sale, distribution and use of contraceptives. Found guilty of contraceptive distribution by a Connecticut court, Griswold appealed until finally reaching the Supreme Court, which overturned her earlier conviction. Writing for the majority, Justice William O. Douglas stated that a right to “marital privacy” entitled married couples to purchase and use contraceptives. Justice Douglas found this marital “privacy right” — a general right to privacy is not mentioned in the Constitution — through “penumbras, formed by emanations” that create “guarantees” that create “zones of privacy.” (Yes, the 4th Amendment includes a privacy right, but it is a specific right to privacy in one’s home or person against unreasonable searches and seizures).
The camel’s nose was under the tent, and seven years later, in Eisenstadt v. Baird, the right to “marital privacy” became a “right to privacy.” Although Griswold had noted the importance of matrimony as a justification for its ruling protecting “marital privacy rights,” Eisenstadt now allowed unmarried adults to join the party.
And then, a year later, Roe v. Wade was decided, and the “right to privacy” expanded to include a right to an abortion. Legally, socially, religiously, scientifically, Roe is the most controversial legal decision of the last 40 years, and it split America in two — “pro choice” versus “pro life,” a “fetus” versus “the unborn,” “liberals” versus “conservatives.” Since Roe, America has been a different nation.
But there was more to come. In 2003, in Lawrence v. Texas, the Supreme Court overturned a Texas law prohibiting homosexual sodomy, meaning the Constitution now protected a right to “private, consensual, intimate adult contact,” and a few months later, citing the Lawrence decision as a precedent, in Goodridge v. Department of Public Health, the Massachusetts supreme judicial court codified a right to same-sex marriages.
What a long, strange trip it’s been, beginning with Griswold, which in itself was a legally defensible decision. It is hard to argue that married couples don’t have the legal right to decide whether or not to use contraception.
But the Supreme Court’s ruling in Griswold was the catalyst, leading to a general, amorphous “right to privacy,” which gave unelected judges an awesome power to make public policy from the bench. And not just any public policy, but policy about a long-standing cultural issue — marriage, procreation and family — that was traditionally made in Congress and in state legislatures, by elected representatives beholden to the people.
