SYMHC Classics: Griswold v. Connecticut

This 2022 episode covers Griswold v. Connecticut, the U. S. supreme court decision that overturned laws banning contraception – at least, for married couples. See omnystudio.com/listener https://omnystudio.com/listener for privacy information.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Tracy V. Wilson?

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• 0:37Holly Frey?

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• 1:37Tracy V. Wilson?

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• 2:06Holly Frey?

  Happy Saturday. This episode is coming out on the 60th anniversary of the US Supreme Court decision in Griswold versus Connecticut, which was decided on June 7, 1965. It overturned a Connecticut law banning contraception and established a basis for a right to privacy for married couples in the US.

• 2:26Tracy V. Wilson?

  This episode also makes some references to the right to due process. This is part of the Fifth and Fourteenth Amendments to the US Constitution, which both specify that no person will be deprived of their life, liberty, or property without due process of law, meaning a fair hearing or some other type of fair proceeding. So we would just like to take a moment to note that this language in both of these amendments applies to persons, not just to citizens. Everyone has the right to due process, including immigrants, regardless of their immigration status.

• 3:04Holly Frey?

  This episode originally came out on July 27, 2022.

• 3:11Holly Frey?

  Welcome to Stuff You Missed in History Class, a production of iHeartRadio.

• 3:22Tracy V. Wilson?

  Hello and welcome to the podcast. I'm Tracy V. Wilson.

• 3:25Holly Frey?

  And I'm Holly Frey.

• 3:27Tracy V. Wilson?

  I've been circling the idea of an episode on Griswold versus Connecticut for years. That's the US Supreme Court decision that overturned laws banning contraception, at least when it came to married couples. That's connected to several of our previous episodes as well, but the recent Supreme Court decision in Dobbs versus Jackson Women's Health Organization is really what finally propelled it up to the top. That's the decision that came out just recently, which overturned Roe versus Wade and Planned Parenthood versus Casey. And in the concurring opinion that he wrote on this case, Justice Clarice Thomas wrote,

• 4:08Tracy V. Wilson?

  quote, "In future cases, we should reconsider all of this court's substantive due process precedents, including Griswold, Lawrence, and Obergefell." So substantive due process, that's the idea that courts can protect various rights that aren't specifically named in the Constitution, and in this case, it's the right to privacy. Griswold versus Connecticut wasn't the very first Supreme Court decision ever in the US to mention the right of a concept of privacy, but it was a major decision in that regard. I personally always had a lot of trouble understanding the logic behind the decision of Roe versus Wade. Not the outcome, but like the reasoning of how they

• 4:53Tracy V. Wilson?

  got there, which was essentially that abortion was also protected under a right to privacy. That logic, though, makes a lot more sense to me with Griswold versus Connecticut as background. And then this decision is also mentioned in a lot of other decisions that came after it, beyond just the ones that were mentioned in Thomas's concurring opinions. So that's what we're talking about today. Heads up, obviously, we're going to be talking a lot about contraception in this episode. There's also a bit about abortion and some things related to pregnancy and birth-related trauma.

• 5:27Holly Frey?

  Griswold versus Connecticut overturned a law that was sometimes described as a, quote, "little Comstock law." That was a nickname for various state anti-obscenity laws that were similar to the Comstock Act of 1873, or more formally known as an Act for the Suppression of Trade in and Circulation of Obscene Literature and Articles of Immoral Use. This law was named for social reformer Anthony Comstock, coincidentally also of Connecticut.

• 5:57Tracy V. Wilson?

  Comstock served in the Union Army during the US Civil War. His upbringing had been deeply conservative, and during his time in the Army, he really disapproved of a lot of his fellow soldiers' behavior, especially things like gambling and drinking, using tobacco and swearing. And then, for their part, his fellow soldiers seemed to have seen him mostly as a sanctimonious prude. After the war was over, Comstock moved to New York, where he similarly really disapproved of the prevalence of things like sex work and explicit literature.

• 6:29Holly Frey?

  So he started advocating for anti-obscenity and anti-vice laws. He started out doing much of this work through the Young Men's Christian Association, or YMCA, before heading up a new organization just for that purpose. That was the New York Society for the Suppression of Vice. These two organizations continued to be closely connected. YMCA leaders served on the society's board.

• 6:56Tracy V. Wilson?

  There were already laws on the books in various states at this point that regulated or outlawed things like sex work or obscenity. But Comstock did not think that these laws went far enough. He advocated for a much broader federal law. Then he developed reports on things like sex work, drug use, and sexually explicit printed materials, and delivered them to members of Congress. He really argued that all of these things were corrupting children, and they were encouraging crime, and he thought they should all be outlawed.

• 7:29Holly Frey?

  The Comstock Act was signed into law in March of 1873. It outlawed using the United States Postal Service to send any, quote, "obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion." It applied to, quote, "any article or thing intended or adapted for any indecent or immoral use or nature." This also included advertisements, notices, and other publications. Violating this law was punishable with a fine

• 8:12Holly Frey?

  of not less than $100 or more than $500, or hard labor of not less than one year or more than 10 years, or both.

• 8:22Tracy V. Wilson?

  After having successfully lobbied for this law to be passed, Comstock was made a special agent for the United States Postal Service, and he was tasked with enforcing it there. Since the act didn't actually define what obscenity was, a lot of this was up to his discretion. There was also a lot of focus on materials related to contraception, which was specifically referenced in the law.

• 8:47Tracy V. Wilson?

  Comstock claimed that his work in this role led to the successful prosecutions of more than 3,600 people, and he claimed that he had destroyed more than 160 tons of literature that was, at least in his opinion, obscene.

• 9:04Holly Frey?

  While various states already had anti-obscenity laws in place before the Comstock Act was passed, some revised their laws afterward, and many, many other states passed new ones. By the early 20th century, nearly every state had some kind of anti-obscenity law. Ultimately, 31 states legally defined information about contraception as obscenity. And 24 states also banned the sale of contraceptives.

• 9:33Tracy V. Wilson?

  So to point out one of the links back to an earlier episode of the podcast. When we talked about Catherine Dexter McCormick, who provided a big part of the funding for developing oral contraceptives, we talked about her smuggling diaphragms into the United States from Europe by sewing them into the hems and linings of her clothes because diaphragms were illegal. This was why.

• 9:58Holly Frey?

  Contraceptive advocates and other reformers pushed for the repeal of the Comstock Act and all the various state little Comstocks for decades. In 1916, birth control advocate Margaret Sanger was tried for violating New York's anti-obscenity law when she tried to import contraceptive diaphragms into the United States. The New York State Court of Appeals decided that doctors were exempt from the law because they were making decisions for their patients' health and well-being rather than for some obscene purpose. But Sanger's conviction was upheld because she was not a doctor.

• 10:36Tracy V. Wilson?

  So that case was specific to New York. At the federal level, a similar case started dismantling the Comstock Act's prohibitions on birth control in 1936. This case was United States versus one package of Japanese pessaries, which was heard in the United States Court of Appeals for the Second Circuit in New York City. This package, named in the case, was a box of 120 contraceptive diaphragms that physician Hannah Stone, who was working with Margaret Sanger, had tried to import from Japan. The package was seized at Customs because importing contraceptives was illegal under the Tariff Act of 1930, which had similar provisions to the Comstock Act.

• 11:19Tracy V. Wilson?

  Because Stone had not taken possession of the shipment, she had not technically violated the terms of the Tariff Act, so this case was filed against the package itself. Stone and her attorneys stood in for the package at trial. This is a weirder thing that happens in the law sometimes where you file suit against an inanimate object.

• 11:40Holly Frey?

  The US Court of Appeals followed the same basic logic that the New York State Court of Appeals had in the earlier case against Margaret Sanger. The anti-obscenity provisions in the Tariff Act and also the Comstock Act didn't apply to physicians because their work as doctors was about patient health and not obscenity. So in terms of federal law, United States versus One Package essentially legalized contraception if that contraception was provided by a doctor. But this ruling didn't overturn the laws that were still on the books in various states.

• 12:16Tracy V. Wilson?

  Most states eventually repealed or otherwise overturned their anti-contraception laws by the time the Food and Drug Administration approved the first oral contraceptive pill in 1960. But at that point, Connecticut's law remained in place, and we'll get to that after a sponsor break.

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• 13:08Tracy V. Wilson?

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• 13:20Tracy V. Wilson?

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• 14:20Tracy V. Wilson?

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• 15:15Holly Frey?

  A rare disease diagnosis can change your life, but it doesn't have to define your future. Tune in for season seven of Untold Stories: Life with a Severe Autoimmune Condition, a Ruby Studio production in partnership with Argenx. Hosted by public health and policy expert Dr. Martine Hackett, Untold Stories: Life with a Severe Autoimmune Condition pushes the conversation within the rare disease community forward. Featuring guests living with MG, CIDP, myositis, SMA, and other rare autoimmune conditions, each

• 15:47Holly Frey?

  Episode explores hope, progress and connection. How does research create new opportunities? How do shared experiences help light the way forward? How do we best show up for each other? Tune in to find out. Listen on the iHeart Radio app, Apple Podcasts, or wherever you get your podcasts.

• 16:17Tracy V. Wilson?

  Connecticut's anti-contraception law dated back to 1879. One of its primary supporters had been the Chair of the Connecticut Legislature Joint Committee on Temperance. That was Phineas Taylor Barnum. Yes, that is P T Barnum, the circus guy. Under this law, quote, "Any person who uses any drug, medicinal article, or instrument for the purposes of preventing conception shall be fined, not less than $40 or imprisoned, not less than 60 days." The law also said, quote, "Any person who assists, abets, counsels, causes, hires, or commands another to commit any offense may be prosecuted

• 17:00Tracy V. Wilson?

  and punished as if he were the principal offender." So in other words, under this law, using contraception was illegal, and so was providing contraception or counseling people about it.

• 17:13Holly Frey?

  People in Connecticut lobbied for the repeal of the law for decades. This escalated in 1923 after Catherine Houghton Hepburn and two of her friends established the Connecticut branch of the American Birth Control League. Catherine Houghton Hepburn was the mother of actor Catherine Hepburn, and the American Birth Control League later became known as Planned Parenthood. But in 1938, authorities raided a contraceptive clinic in Waterbury, Connecticut, and pressed charges against its medical staff, which put an end to services at the clinic and also put a damper on the rest of the movement.

• 17:50Tracy V. Wilson?

  So we should take a moment to note the birth control movement during this era was deeply flawed. Although it was rooted in the basic idea of allowing people to choose when and whether to have children, some of its leaders, including Margaret Sanger, were also proponents of eugenics. That's rooted in the idea that the human race can be improved through things like good breeding. So broadly speaking, positive eugenics was focused on encouraging the so-called right people to have more children, while negative eugenics was focused on preventing the, quote, "wrong people" from reproducing. This entire idea of eugenics was simultaneously racist, ableist, and incredibly widely adopted,

• 18:35Tracy V. Wilson?

  including in some cases by leaders of various groups of people that the eugenics movement as a whole saw as inferior. Negative eugenics in particular led to horrific human rights abuses and was a major influence on Nazi racial policy.

• 18:50Holly Frey?

  But what we're really focused on in this episode today is access to contraception. Eventually, Connecticut mostly stopped enforcing its anti-contraception law, but since it was still on the books, this led to disparities in who could get contraceptives. Condoms were available at some drugstores, but they weren't an option for everyone, especially for people whose partners refused to wear condoms, or for people who needed a more discreet way to prevent pregnancy without their partner being involved.

• 19:22Tracy V. Wilson?

  Middle and upper-class people, especially married couples who had money and access to private medical care, could usually find a doctor who was willing to provide them with contraception in spite of the law. Or if not that, at least to connect them with another provider in a state where it was legal. But poor people who didn't have these kinds of resources often could not. And people of color who were working within their own communities as doctors were generally at a lot more risk than white doctors were, compounding that if they were arrested and lost their medical license, that could mean the loss of medical care for that whole community. That was something people had to take into account when deciding whether to try to get around the law.

• 20:06Holly Frey?

  In 1940, the Connecticut Supreme Court heard State versus Nelson involving a case against two doctors who had been running a birth control clinic, one that authorities seemed to have ignored until clergy in the predominantly Catholic neighborhood where it was located demanded it be investigated. The doctors' attorneys argued that the anti-contraception law shouldn't apply to them because they were prescribing contraception to married women for the sake of their health and well-being. The court found that the law was unambiguous. Contraception was illegal, no matter who was prescribing it, and upheld it. After this, the state prosecutor agreed to drop charges against the doctors if they

• 20:48Holly Frey?

  closed their clinic, which they did, and that led the other clinics in the state to also shut down.

• 20:54Tracy V. Wilson?

  Yeah, there had been, I mean, this whole time, there had been people who were trying to provide birth control, and it was like the threat that since the state had upheld the law, that other clinics were also going to be targeted, just led a lot of people to make the decision to shut down. So, three years later, Yale Medical School professor Wilder Tileston filed suit on behalf of patients, arguing that the Connecticut law needed to have an exception for people whose lives would be at risk if they became pregnant. This led to the Connecticut Supreme Court case of Tileston versus Ullman. Ullman was the Connecticut state's attorney, Abraham Ullman. The Connecticut Supreme Court rejected Tileston's arguments, noting that people already had

• 21:39Tracy V. Wilson?

  a way to prevent pregnancy that was, quote, "positive and certain in results." That method was abstinence. The US Supreme Court heard oral arguments in this case, but eventually dismissed it. Quote, "We are of the opinion that the proceedings in the state courts present no constitutional question, which appellate has standing to assert."

• 22:01Holly Frey?

  On June 23, 1960, the FDA approved the first oral contraceptive. There's more about this in our Nelson Pill Hearings episode from May of 2021. By this point, public opinion polls suggested that more than 70% of people in the United States thought information about contraception should be legal. The introduction of oral contraceptives, which were in many ways more reliable and more convenient than other available methods of contraception, also added a renewed urgency to the effort to get Connecticut's law repealed.

• 22:36Tracy V. Wilson?

  In 1961, the US Supreme Court heard two cases related to Connecticut's anti-contraception law. One was Trubek versus Ullman. Again, that's the same Abraham Ullman as before. Louise and Dave Trubek had gotten married in 1958 while they were both students at Yale Law School. They wanted to have children one day. They did not want to have children where they were both in law school, but it was illegal for their doctor to discuss contraception with them. The Trubek's case had originally been part of a group of other cases, but they elected not to remain anonymous and their case was heard separately.

• 23:13Holly Frey?

  The other case was Poe versus Ullman, and it involved an anonymous couple and an anonymous married woman. The couple were known as Pauline and Paul Poe. They had had three children, all of whom had multiple congenital illnesses and had died as newborns. They thought it was unlikely that they could have a child that would survive infancy, and they wanted to avoid future pregnancies. The married woman was known as Jane Doe. She had had a stroke while pregnant and her child had been stillborn. She was disabled following the stroke, and it was unlikely that she could survive another pregnancy. These people all lived in Connecticut, where it was illegal for their doctors to discuss contraception with them.

• 23:58Tracy V. Wilson?

  In a five to four ruling, the Supreme Court dismissed this case, finding that, quote, "The records in these cases do not present controversies justifying the adjudication of a constitutional issue." Justice Felix Frankfurter authored the opinion, which said in part, quote, "This court cannot be umpire to debates concerning harmless, empty shadows." In other words, because Connecticut wasn't really enforcing this law very strictly anymore, it was harmless and empty in the eyes of the court. Also, because none of these plaintiffs had been arrested or convicted of anything, there was no injury for the court to need to remedy.

• 24:39Tracy V. Wilson?

  And the court also dismissed Trebek versus Ullman without further comment as part of the same set of decisions.

• 24:46Holly Frey?

  The dissenting justices in Poe versus Ullman all issued their own opinions, arguing, among other things, that people should not have to break the law to get basic health information, and that there shouldn't need to be an arrest and conviction in order for the court to rule on whether a law was unconstitutional. The dissent by Justice William O. Douglas said in part, quote, "What are these people, doctor and patients, to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today's decision, we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment in our constitutional system.

• 25:30Holly Frey?

  It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor, seek a dignified, discreet, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined."

• 25:51Tracy V. Wilson?

  So after this, it seemed like the Supreme Court would only be willing to examine Connecticut's law if somebody had been convicted of breaking it. So immediately after the court announced its decision on June 19, 1961, Estelle Griswold and Charles Lee Buxton decided it was time to get arrested.

• 26:09Holly Frey?

  Griswold was executive director of the Planned Parenthood League of Connecticut. Buxton was its medical director, and Jane Doe and Pauline and Paul Poe had been his patients. At this point, Planned Parenthood League of Connecticut had mostly been providing people with transportation to New York or Rhode Island, where contraception was legal, rather than directly providing contraception. But on June 20, 1961, just a day after the Supreme Court decision, Griswold and Buxton announced that they would be opening a contraceptive clinic in New Haven.

• 26:45Tracy V. Wilson?

  The clinic opened on November 1st of that year, advertising its services specifically to married couples. They saw 10 patients on the first day in operation and they also held a press conference. Two days later, police stopped by and Griswold helpfully told them all about the work they were doing, the contraceptives they were providing, the counseling that was available to patients, the literature they had available, and the fact that they knew it was all illegal.

• 27:11Holly Frey?

  On June 10th, police returned with warrants for Griswold and Buxton's arrest, and the clinic was shut down. Griswold and Buxton stood trial and their attorneys argued that counseling married couples on the use of contraception was protected free speech. The two were convicted and fined $100 each, and after a series of appeals, their case was before the US Supreme Court under Chief Justice Earl Warren.

• 27:37Tracy V. Wilson?

  The Warren Court has come up several times on the show. Earl Warren was Chief Justice when Loving versus Virginia, Brown versus Board of Education, and Hernandez versus Texas were all decided. He was also Chief Justice during Yates versus United States, which we talked about in our episode on COINTELPRO. We've also talked about his time as Governor of California on a couple of episodes, including our two-parter on Executive Order 9066 and the mass incarceration of Japanese Americans during World War II.

• 28:07Holly Frey?

  We will get to the court's decision after we pause for a sponsor break.

• 28:46Holly Frey?

  A rare disease diagnosis can change your life, but it doesn't have to define your future. Tune in for season seven of Untold Stories: Life with a Severe Autoimmune Condition, a Ruby Studio production in partnership with Argenx. Hosted by public health and policy expert Dr. Martine Hackett, Untold Stories: Life with a Severe Autoimmune Condition pushes the conversation within the rare disease community forward. Featuring guests living with MG, CIDP, myositis, SMA, and other rare autoimmune conditions, each episode explores hope, progress, and connection. How does research create new opportunities? How do shared experiences help light the way forward? How do we best show up for each other?

• 29:31Holly Frey?

  Tune in to find out. Listen on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

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• 31:11Tracy V. Wilson?

  On June 7th, 1965, in a seven to two ruling, the US Supreme Court issued its decision in Griswold versus Connecticut, and it overturned Connecticut's anti-contraception laws. The justices who were part of the court authored multiple opinions in this case. Justice William O. Douglas, who had authored one of the dissents in Poe versus Ullman, which we read earlier, authored the majority opinion. Justice Arthur Goldberg wrote a concurring opinion that was joined by Justice William J. Brennan Jr. and Chief Justice Warren. Justices John M. Harland II and Byron White each issued their own concurring opinions.

• 31:52Tracy V. Wilson?

  And then Justices Hugo Black and Potter Stewart dissented, as they had also done in Poe versus Ullman, and each of them wrote their own dissents.

• 32:01Holly Frey?

  The court found that, one, Griswold and Buxton did have standing in this matter, something that had been at issue in those earlier cases. And the court also found that, quote, "The Connecticut statute forbidding use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights."

• 32:22Tracy V. Wilson?

  So the easy part with that is that the court found Connecticut's ban on contraceptives to be unconstitutional. But the rest of it is a little trickier because a right to marital privacy isn't mentioned or enumerated in the Constitution. Like we said up at the very top of the show, substantive due process is the idea that the courts can protect unenumerated rights. And in Griswold versus Connecticut, the court was arguing that the right to privacy was found in the penumbra, or the shadow, of other rights that are mentioned.

• 32:57Holly Frey?

  The majority opinion referenced a series of previous cases in which protected rights were interpreted as being broader than what was spelled out in the Constitution. For example, in Meyer versus State of Nebraska, the court had struck down a law mandating that children be taught only in English through the eighth grade. The court found that this violated the due process clause of the 14th Amendment, which says that no state shall, quote, "deprive any person of life, liberty, or property without due process of law." In this case, a teacher in a Lutheran school was teaching reading in German, and the court found that even though the 14th Amendment didn't reference things like languages other than English, quote, "his right thus to teach and the right of parents

• 33:41Holly Frey?

  to engage him so to instruct their children, we think are within the liberty of the amendment."

• 33:47Tracy V. Wilson?

  The majority opinion in Griswold versus Connecticut then ticked through a series of similar cases and their associated freedoms. Like in earlier cases, the court had found that the First Amendment protection of free speech also included the right to read and to receive information. The court had also described the First Amendment freedom to assemble as extending to the freedom of association with other people. So, assembly did not just mean physically going to a meeting. It also involved being affiliated with a group and expressing personal philosophies through being a member of that group.

• 34:25Holly Frey?

  Having been through all of that, the majority opinion read, quote, "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

• 35:08Holly Frey?

  against unreasonable searches and seizures. The Fifth Amendment, in its self-incrimination clause, enables the citizens 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.'"

• 35:32Tracy V. Wilson?

  Yeah, that last one basically means just because a specific right is not mentioned in the Constitution, that doesn't mean that right doesn't exist. Like, it's not saying every single right on the planet has to be specifically named, or it's not a real thing.

• 35:46Holly Frey?

  This decision went on to build the idea of a zone of privacy that was specifically related to a marital relationship. Quote, "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." It went on to rhetorically ask, quote, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?

• 36:26Holly Frey?

  The very idea is repulsive to the notions of privacy surrounding the marriage relationship."

• 36:32Tracy V. Wilson?

  So all those various concurring opinions agreed with the idea that the right to privacy could be inferred from some part of the Constitution. They just all differed a little bit on exactly how or where. And then the two dissenting justices made it clear that they did not like this law either, even though they didn't find that there was a constitutional reason to overturn it. Justice Hugo Black's dissent read in part, quote, "I feel constrained to add that the law is every bit as offensive to me as it is to my brethren of the majority and my brothers Harlan, White, and Goldberg, who, reciting reasons why it is offensive to them, hold it unconstitutional."

• 37:13Holly Frey?

  Justice Potter Stewart wrote in his dissent, quote, "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."

• 37:50Holly Frey?

  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.

• 38:02Tracy V. Wilson?

  The majority, though, had found that it violated the Constitution. And by finding Connecticut's anti-contraception law unconstitutional, the Supreme Court made contraception and contraceptive counseling legal nationwide in the context of married couples. So this also struck down the anti-contraception language in the Comstock Act, which was still on the books. So this was a victory in terms of access to contraception.

• 38:29Holly Frey?

  But it was definitely incomplete. Number one, it applied only to married couples. The focus was on the idea that privacy was intrinsic to a married relationship. So laws forbidding contraceptive use or counseling for single people were unaffected. Number two, this idea that there were penumbras creating zones of privacy was immediately controversial. There were, and continue to be, legal scholars who argued that this isn't really a thing and that this was faulty reasoning on the part of the justices.

• 39:04Tracy V. Wilson?

  Beyond that, there were people, particularly women's rights activists, who raised concerns about this ruling's focus. There is no constitutional guarantee of equal rights for women in the United States. And at this point, the Equal Rights Amendment had not yet been passed by Congress. As we discussed in our previous episode on the Equal Rights Amendment, even though Congress did eventually pass it, not enough states ratified it by the deadline for it to become part of the Constitution. So there were a lot of women in particular who thought that the court should have used a different reasoning, like maybe one that interpreted the 14th Amendment's equal protection and due process clauses as protecting a woman's

• 39:46Tracy V. Wilson?

  right to bodily autonomy. We recognize that not everyone who can get pregnant is a woman, including trans men and non-binary people, and that there were also plenty of people living at the time who were living outside the gender binary in various ways. But really, the focus of the response to this in 1965 was on women.

• 40:04Holly Frey?

  During research for this episode, Tracy read a paper in the American Historical Review that suggested that this privacy angle might have been influenced by the Wolfenden Report, which was published in the UK in 1957. This report followed a rise in convictions for breaking laws against homosexual behavior, including convictions of some high-profile men. A committee was formed to investigate UK laws around homosexuality and sex work, and it recommended decriminalization of homosexuality. In the words of that report, their "must remain a realm of private morality and immorality, which is, in brief and crude terms, not the law's business."

• 40:47Holly Frey?

  But if this idea influenced the thought process of the justices in Griswold versus Connecticut, it didn't make its way into Supreme Court decisions about same-sex relationships until much later.

• 40:59Tracy V. Wilson?

  As we said at the top of the show, the Supreme Court decision in Griswold versus Connecticut and the reasoning that was used to make that decision have become part of a lot of other cases. In 1969, the Supreme Court sided Griswold v. Connecticut in its decision in Stanley versus Georgia, which found that possession of obscene materials was protected in part because of a right to privacy.

• 41:22Holly Frey?

  In 1972, the court struck down a Massachusetts law banning the distribution of contraceptives to unmarried people. Although the question before the court was whether this law violated the privacy standard established in Griswold versus Connecticut, the court found that it violated the 14th Amendment due process clause.

• 41:42Tracy V. Wilson?

  In 1973, the court issued its decision in Roe versus Wade, finding the right to privacy established in Griswold as being inherent in the due process clause of the 14th Amendment and also extending to a person's decision to terminate a pregnancy. But the court also ruled that this right had to be balanced out with other concerns related to protecting a person's health and to, quote, "the potentiality of human life."

• 42:08Holly Frey?

  In 1986, the Supreme Court cited Griswold versus Connecticut in its ruling in Bowers versus Hardwick, which upheld a Georgia law banning sodomy. Although attorneys had argued that sodomy was protected under the right to privacy that was established in Griswold, the court disagreed. This ruling was overturned in 2003 in Lawrence versus Texas, which was related to both the right to privacy and to the due process clause of the 14th Amendment.

• 42:37Tracy V. Wilson?

  In 2015, the court once again issued a ruling that was partly underpinned by Griswold versus Connecticut, and that was Obergefell versus Hodges. This decision recognized same-sex marriages as legal nationwide, and it cited Griswold at several points, including the decision's description of marriage as a right that's older than the Bill of Rights.

• 42:59Holly Frey?

  And most recently, the court issued its decision in Dobbs versus Jackson Women's Health Organization overturning Roe v. Wade. This decision also overturned Planned Parenthood v. Casey, in which the court had upheld Roe v. Wade and a constitutional right to abortion in 1992. The court's opinion, written by Justice Samuel Alito, noted that the Constitution makes no mention of abortion, something also true of the right to privacy established in Griswold versus Connecticut. But in the court's opinion, Roe versus Wade was different from Griswold versus Connecticut because it did not involve, quote, "the destruction of what Roe called 'potential life.'"

• 43:40Tracy V. Wilson?

  So, the majority opinion in this case noted the connection to several cases we just mentioned. There was Griswold, there was Eisenstadt versus Baird, which is the one that overturned the Massachusetts law barring contraception for unmarried people, and also Obergefell, calling the fear that the Dobbs decision would apply to those rulings as, quote, "unfounded." But as we said at the top of the show, in his concurring opinion, Clarence Thomas wrote that future cases should reconsider rulings that have relied on substantive due process, including Griswold, Lawrence, and Obergefell. So that suggests otherwise.

• 44:22Tracy V. Wilson?

  That is Griswold versus Connecticut, which, as I said at the top of the show, working my way through all that made it a lot easier for me to understand what the logic had been behind the ruling in Roe versus Wade.

• 44:42Tracy V. Wilson?

  Thanks so much for joining us on this Saturday. Since this episode is out of the archive, if you heard an email address, or a Facebook URL, or something similar over the course of the show, that could be obsolete now. Our current email address is [email protected]. You can find us all over social media at @MissedInHistory. And you can subscribe to our show on Apple Podcasts, Google Podcasts, the iHeartRadio app, and wherever else you listen to podcasts.

• 45:13Tracy V. Wilson?

  Stuff You Missed in History Class is a production of iHeartRadio. For more podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or wherever you listen to your favorite shows.

• 45:27Holly Frey?

  A rare disease diagnosis can change your life, but it doesn't have to define your future. In season seven of Untold Stories: Life with a Severe Autoimmune Condition, host Martine Hackett continues the conversation with people living with MG, CIDP, and the broader rare disease community, exploring what comes after diagnosis through stories of hope, progress, and connection. Produced by Ruby Studio in partnership with Argenx. Listen on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

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