Problem: Can a State Make It a Crime for Married Couples to Use Contraceptives?

HISTORY Estelle Griswold and others were convicted in a Connecticut trial court. They appealed, and the intermediate appellate court affirmed their conviction. They appealed to the Connecticut Supreme Court of Errors, which affirmed the intermediate appellate court's judgment. They appealed to the U.S. Supreme Court. The Supreme Court reversed, holding that the Connecticut law forbidding use of contraceptives unconstitutionally intrudes upon the right of marital privacy. DOUGLAS, J., joined by WARREN, CJ., and CLARK, HARLAN, BRENNAN, WHITE, and GOLDBERG, JJ. FACTS [The facts are taken, in part, from the Connecticut Supreme Court of Errors, 400 A2d 479, 480.] In November, 1961, The Planned Parenthood League of Connecticut occupied offices at 79 Trumbull Street in New Haven. For ten days during that month, the league operated a Planned Parenthood center in the same building. The defendant, Estelle T. Griswold, is the salaried executive director of the league and served as acting director of the center. The other defendant, C. Lee Buxton, a physician, who has specialized in the fields of gynecology and obstetrics, was the medical director of the center. The purpose of the center was to provide information, instruction, and medical advice to married persons concerning various means of preventing conception. In addition, patients were furnished with various contraceptive devices, drugs, and materials. A fee, measured by ability to pay, was collected from the patient. At the trial, three married women from New Haven testified that they had visited the center, had received advice, instruction, and certain contraceptive devices and materials from either or both of the defendants and had used these devices and materials in subsequent marital relations with their husbands. Upon these facts, there is no doubt that, within the meaning of the statute, the defendants did aid, abet, and counsel married women. The statutes whose constitutionality is involved in this appeal are Sections 53-32 and 54-196 of the General Statutes of Connecticut.

The former provides: 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. Section 54-196 provides: 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. The appellants were found guilty as accessories and fined $100 each, against the claim that the accessory statute as so applied violated the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed. The Supreme Court of Errors affirmed that judgment. OPINION We are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation. The association of people is not mentioned in the Constitution or in the Bill of Rights. The right to educate a child in a school of the parents' choice-whether public or private or parochial-is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. We protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. Those cases involved more than the "right of assembly"-a right that extends to all irrespective of their race or ideology. The right of "association," like the right of belief, is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.

The foregoing cases suggest that 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. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.

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-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Reversed. DISSENT STEWART, J., joined by BLACK, J. Since 1879 Connecticut has had on its books a law, which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs.

As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do. What provision of the Constitution makes this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court. At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases agreeably to the Constitution and laws of the United States. It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.

Questions: 1. Summarize how Justice Douglas arrived at the conclusion that there is a "fundamental constitutional right to privacy" when the word privacy never appears in the Constitution or any of its amendments.

2. Summarize Justice Stewart's reasons for concluding there is no right to privacy in the U.S. Constitution.

3. Do you think the Connecticut law violates a fundamental right? Back up your answer with arguments from the case and the discussion of the right to privacy in the text preceding the case.

4. Do you think the Connecticut law is "uncommonly silly"? If you think it is, explain why. If not, how would you characterize it?