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.
