One can only imagine what Potter Stewart would have made of Campaign 2012.
It looks like the presidential election is going to be haunted by the ghost of Estelle Griswold. She was the director of Planned Parenthood in Connecticut when she was fined $100 for violating laws of the Nutmeg State against disseminating contraceptives. It was in her appeal that the Supreme Court discovered, among the penumbras, emanations, and shadows in the Constitution, a right to privacy. Nearly 50 years later, it seems the questions she raised are again at the center of our political debate—not because anyone wants to ban contraception, but because the government wants everyone to pay for it.
These questions burst into the presidential debates in January at Saint Anselm College in Manchester, New Hampshire. ABC’s moderator, George Stephanopoulos, kept pressing Mitt Romney to explain whether he thinks states have the right to outlaw contraception. “Or,” Stephanopoulos asked, “is that trumped by a constitutional right to privacy?” Mr. Romney tried to dodge the question, and complained it was silly and hypothetical, given that no state wants to ban contraception. The exchange went on until Mr. Romney suggested referring the matter to “our constitutionalist here”—and gestured to Ron Paul.
In an editorial at the time, the New York Sun suggested the governor should have confronted the substance of the question, even if Mr. Stephanopoulos’s intent was to make trouble. Mr. Romney is, after all, a graduate of Harvard Law School, and he had to know all about Mrs. Griswold.
The court’s opinion, written by one of the most radical judges ever to sit on the bench, William O. Douglas, declared that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Connecticut’s ban on contraception, the official case summary says, violated “the right of marital privacy which is written in the penumbra of specific guarantees of the Bill of Rights.”
The right to privacy, established in a seven-to-two decision, has proven hard to assail. Connecticut was defeated even though its people had been exercising the power to regulate birth control for more than a century. In and of itself, that doesn’t make the court’s ruling wrong. It does put a premium on parsing the dissent, which was written by one of the plainest-spoken judges on the court, Potter Stewart.
Stewart was a moderate Republican from Ohio who had once been the youngest judge on the federal bench. President Eisenhower used a recess appointment to raise him to the high court, though he was later confirmed by a wide margin. He was a common-sense man. It was Stewart who uttered the formulation that although he mightn’t be able to define pornography, he knew it when he saw it. When it came to Mrs. Griswold and the question of contraceptives, he delivered a dissent that, even though it was joined only by Justice Hugo Black, is remembered as a classic.
Stewart quoted an earlier case about how “courts do not substitute their social and economic beliefs for the judgment of legislative bodies…” He reckoned the law that had snared Mrs. Griswold was “uncommonly silly,” but he mocked the notion that the First, Third, Fourth, and Fifth Amendments, which were cited by the majority, prohibited the Connecticut legislature from regulating birth control. He noted that no one even argued Connecticut’s was a law respecting an establishment of religion or prohibiting the free exercise thereof.
Nor, he wrote, “unless the solemn process of constitutional adjudication is to descend to the level of a play on words,” was there any abridgement of the rights to speech, the press, peaceable assembly, or petition. He seemed astounded that one of the constitutional articles in which the majority found a right to privacy affecting birth control was the Third Amendment, which prohibits the quartering of soldiers in a private home in time of peace without the owner’s consent. “No soldier,” he exclaimed in his dissent, “has been quartered in any house.”
“What provision of the Constitution, then, does make this state law invalid?” Stewart demanded. “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.’”
Finally, Stewart noted, it was “the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.” He remarked that powers not delegated to the federal government by the Constitution are reserved to the states and to the people. “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 true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.”
How all this might have gone had the court left Connecticut to deal with the question is something to think about right now. The right to privacy the court discovered in Griswold was one of the bases on which Norma McCorvey, being heard as Jane Roe, pressed her case against the district attorney of Dallas County, Henry Wade, in the appeal that became Roe v. Wade. Instead of resolving the great conflict, Griswold has extended it for decades. We have reached a point where the question is no longer whether contraception is protected by a right to privacy, but whether the government may require private companies to pay for it, whether they want to or not.
One can only imagine what Potter Stewart would have made of all this. Having been outvoted in Griswold, he fell in with the majority in Roe v. Wade. He stepped down from the high bench in the first summer of the Reagan administration and was succeeded by Justice Sandra Day O’Connor. He died in 1985, four years after Mrs. Griswold herself passed away in Florida.
It may be that by the time this column is published, Senator Santorum will have dropped out of the Republican primaries, and the social issues of which he is a tribune will have abated. But it may also be that Mrs. Griswold’s ghost will flit in and out of the courts for some time, along with the spirit of Potter Stewart.