Speaker 1: Welcome to Stuff you missed in History Class, a production
Speaker 1: of I Heart Radio. Hello, and welcome to the podcast.
Speaker 1: I'm Tracy V. Wilson and I'm Holly Fry. I've been
Speaker 1: circling the idea of an episode on Griswold versus Connecticut
Speaker 1: for years. That's the U. S. Supreme Court decision that
Speaker 1: overturned laws banning contraception, at least when it came to
Speaker 1: married couples. That's connected to several of our previous episodes
Speaker 1: as well, But the recent Supreme Court decision in Dobbs
Speaker 1: versus Jackson Women's Health Organization is really what finally propelled
Speaker 1: it up to the top. That's the decision that came
Speaker 1: out just recently which overturned Roe versus Wade and Planned
Speaker 1: Parenthood versus Casey. And in the concurring opinion that he
Speaker 1: wrote on this case, Justice Claris Thomas wrote, quote, in
Speaker 1: future are cases, we should reconsider all of this Court's
Speaker 1: substantive due process precedents, including Griswold, Lawrence and Obergefeld. So
Speaker 1: substantive due process that's the idea that courts can protect
Speaker 1: various rights that aren't specifically named in the Constitution. And
Speaker 1: in this case, it's the right to privacy. Griswold versus
Speaker 1: Connecticut wasn't the very first Supreme Court decision ever in
Speaker 1: the US to mention the right of a concept of privacy,
Speaker 1: but it was a major decision in that regard. I
Speaker 1: personally always had a lot of trouble understanding the logic
Speaker 1: behind the decision of Roe versus Wade, not the outcome,
Speaker 1: but like the reasoning of how they got there, which
Speaker 1: was essentially the abortion was also protected under a right
Speaker 1: to privacy. That logic, though, makes a lot more sense
Speaker 1: to me with Griswold versus Connecticut as background. And then
Speaker 1: this decision is also mentioned, and a lot of other
Speaker 1: decisions that came after it, beyond just the ones that
Speaker 1: were mentioned in Thomas's concurring opinions. So that's what we're
Speaker 1: talking about today. Heads up. Obviously we're gonna be talking
Speaker 1: a lot about contraception in this episode. There's also a
Speaker 1: bit about abortion and some things related to pregnancy and
Speaker 1: birth related trauma. Griswold versus Connecticut overturned a law that
Speaker 1: was sometimes described as a quote little Comstock law that
Speaker 1: was a nickname for various state anti obscenity laws. That
Speaker 1: were similar to the Comstock Act of eighteen seventy three,
Speaker 1: or more formally known as an Act for the Suppression
Speaker 1: of Trade in and Circulation of Obscene Literature and Articles
Speaker 1: of Immoral use. This law was named for social reformer
Speaker 1: Anthony Comstock, coincidentally also of Connecticut. Comstock served in the
Speaker 1: Union Army during the U S Civil War. His upbringing
Speaker 1: had been deeply conservative, and during his time in the
Speaker 1: army he really disapproved of a lot of his fellow
Speaker 1: soldier's behavior, especial really things like gambling and drinking, using tobacco,
Speaker 1: and swearing, And then for their part, his fellow soldiers
Speaker 1: seemed to have seen him mostly as a sanctimonious prude.
Speaker 1: After the war was over, Comstock moved to New York,
Speaker 1: where he similarly really disapproved of the prevalence of things
Speaker 1: like sex work and explicit literature, so he started advocating
Speaker 1: for anti obscenity and anti vice laws. He started out
Speaker 1: doing much of this work through the Young Men's Christian
Speaker 1: Association or y m c A, before heading up a
Speaker 1: new organization just for that purpose that was the New
Speaker 1: York Society for the Suppression of Vice. These two organizations
Speaker 1: continued to be closely connected. Y M. C, a leader,
Speaker 1: served on the society's board. There were already laws on
Speaker 1: the books in various states at this point that regulated
Speaker 1: or outlawed things like sex work or obscenity, but Comstock
Speaker 1: did not think that these laws went far enough. He
Speaker 1: advocated for a much broader federal law, and he developed
Speaker 1: reports on things like sex work, drug use, and sexually
Speaker 1: explicit printed materials and delivered them to members of Congress.
Speaker 1: If he really argued that all of these things were
Speaker 1: correcting children, and they were encouraging crime, and he thought
Speaker 1: they should all be outlawed. The Comstock Act was signed
Speaker 1: into law in March of eighteen seventy three. It outlawed
Speaker 1: using the United States Postal Service to send any quote, obscene, lewd,
Speaker 1: or lascivious book, pamphlet, picture, paper, print, or other publication
Speaker 1: of an indecent character, or any article or thing designed
Speaker 1: or intended for the prevention of conception or procuring of abortion.
Speaker 1: It applied to quote any article or thing intended or
Speaker 1: adapted for any indecent or immoral use or nature. This
Speaker 1: also included advertisements, notices, and other publications. Violating this law
Speaker 1: was punishable with a fine of not less than one
Speaker 1: hundred dollars or more than five hundred dollars, or hard
Speaker 1: labor of not less than one year or more than
Speaker 1: ten years, or both. After having successfully lobbied for this
Speaker 1: law to be passed, Comstock was made a special agent
Speaker 1: for the United States Postal Service, and he was tasked
Speaker 1: with enforcing it there. Since the Act didn't actually define
Speaker 1: what obscenity was, a lot of this was up to
Speaker 1: his discretion. There was also a lot of focus on
Speaker 1: materials related to contraception, which was specifically referenced in the law.
Speaker 1: Comstock claimed that his work in this role led to
Speaker 1: the successful prosecutions of more than thirty six hundred people,
Speaker 1: and he claimed that he had destroyed more than a
Speaker 1: hundred and sixty tons of literature that was, at least
Speaker 1: in his opinion, obscene. While various states already had anti
Speaker 1: obscenity laws in place before the Comstock Act was passed,
Speaker 1: some revised their laws afterward, and many many other states
Speaker 1: passed new ones. By the early twentieth century, nearly every
Speaker 1: state had some kind of anti obscenity law. Ultimately, thirty
Speaker 1: one states legally defined information about contraception as obscenity, and
Speaker 1: twenty four states also banned the sale of contraceptives. So
Speaker 1: to point out one of the links back to an
Speaker 1: earlier episode of the podcast when we talked about Catherine
Speaker 1: Dexter McCormick, who provided a big part of the funding
Speaker 1: for developing oral contraceptives. We talked about her smuggling diaphragms
Speaker 1: into the United States from Europe by sewing them into
Speaker 1: the hymns and linings of her clothes. Because diaphragms were illegal.
Speaker 1: This was why contraceptive advocates and other reformers pushed for
Speaker 1: the repeal of the Comstock Act and all the various
Speaker 1: state little Comstocks for decades. In nineteen sixteen, birth control
Speaker 1: advocate Margaret Sanger was tried for violating New York's anti
Speaker 1: obscenity law when she tried to import contraceptive diaphragms into
Speaker 1: the United States. The New York State Court of Appeals
Speaker 1: decided that doctors were exempt from the law because they
Speaker 1: were making decisions for their patients health and well being
Speaker 1: rather than for some obscene purpose, but Sanger's conviction was
Speaker 1: upheld because she was not a doctor, so that case
Speaker 1: was specific to New York. At the federal level, a
Speaker 1: similar case started dismantling the Comstock Acts prohibitions on birth
Speaker 1: control in nineteen thirty six. This case was United States
Speaker 1: versus One package of Japanese pessaries, which was heard in
Speaker 1: the United States Court of Appeals for the Second Circuit
Speaker 1: in New York City. This package named in the case
Speaker 1: was a box of a hundred and twenty contraceptive diaphragms.
Speaker 1: The physician Hannah Stone, who was working with Margaret Sanger,
Speaker 1: had tried to import from Japan. The package was used
Speaker 1: at customs because importing contraceptives was illegal under the Teriff
Speaker 1: Act of nineteen thirty which had similar provisions to the
Speaker 1: Comstock Act. Because Stone had not taken possession of the shipment,
Speaker 1: she had not technically violated the terms of the Teriff Act,
Speaker 1: so this case was filed against the package itself. Stone
Speaker 1: and her attorneys stood in for the package at trial.
Speaker 1: This is a weirder thing that happens in the laws
Speaker 1: sometimes where you file suit against an inanimate object. The
Speaker 1: US Court of Appeals followed the same basic logic that
Speaker 1: the New York State Court of Appeals had in the
Speaker 1: earlier case against Margaret Sanger. The anti obscenity provisions in
Speaker 1: the Terriff Act and also the Comstock Act didn't apply
Speaker 1: to physicians because their work as doctors was about patient
Speaker 1: health and not obscenity. So in terms of federal law,
Speaker 1: United States versus One Package essentially legalized contraception if that
Speaker 1: contraception was provided by a docter. But this ruling didn't
Speaker 1: overturn the laws that were still on the books in
Speaker 1: various states. Most states eventually repealed or otherwise overturned their
Speaker 1: anti contraception laws by the time the Food and Drug
Speaker 1: Administration approved the first oral contraceptive pill in nineteen sixty.
Speaker 1: But at that point, Connecticut's law remained in place, and
Speaker 1: we'll get to that after a sponsor break. Connecticut's anti
Speaker 1: contraception law dated back to eighteen seventy nine. One of
Speaker 1: its primary supporters had been the chair of the Connecticut
Speaker 1: Legislature Joint Committee on Temperance. That was Phineas Taylor Barnum. Yes,
Speaker 1: that is P. T. Barnum, the circus guy. Under this
Speaker 1: law quote, any person who uses any drug, medicinal article,
Speaker 1: or instrument for the purposes of preventing conception shall be
Speaker 1: find not less than forty dollars or imprisoned not less
Speaker 1: than sixty days. The law also said, quote any person
Speaker 1: who assists a bets, counsels, causes, hires, or commands another
Speaker 1: to commit any offense may be prosecuted and punished as
Speaker 1: if he were the principal offender. So, in other words,
Speaker 1: under this law, using contraception was illegal, and so was
Speaker 1: providing contraception or counseling people about it. People in Connecticut
Speaker 1: lobbied for the repeal of the law for decades. This
Speaker 1: escalated in ninety three after Katherine Hotton Hepburn and two
Speaker 1: of her friends established the Connecticut branch of the American
Speaker 1: Birth Control League. Katherine Hotton Hepburn was the mother of
Speaker 1: actor Katherine Hepburn, and the American Birth Control League later
Speaker 1: became known as Planned Parenthood. But in night, authorities rated
Speaker 1: a contraceptive clinic in Waterbury, Connecticut and pressed charges against
Speaker 1: its medical staff, which put an end to services at
Speaker 1: the clinic and also put a damper on the rest
Speaker 1: of the movement. So we should take a moment to
Speaker 1: note the birth control movement during this era was deeply flawed.
Speaker 1: Although it was rooted in the basic idea of allowing
Speaker 1: people to choose when and whether to have children. Some
Speaker 1: of its leaders, including Margaret Singer, were also proponents of
Speaker 1: eugenics that's rooted in the idea that the human race
Speaker 1: can be improved through things like good breeding. So broadly speaking,
Speaker 1: positive eugenics was focused on encouraging the so called right
Speaker 1: people to have more children, while negative eugenics was focused
Speaker 1: on preventing the quote wrong people from reproducing. This entire
Speaker 1: idea of eugenics was simultaneously racist, ablest, and incredibly widely adopted,
Speaker 1: including in some cases by leaders of various groups of
Speaker 1: people that the eugenics movement as a whole saw as inferior.
Speaker 1: Negative eugenics and particular led to horrific human rights abuses
Speaker 1: and was a major influence on Nazi racial policy. But
Speaker 1: what we're really focused on in this episode today is
Speaker 1: access to contraception. Eventually, Connecticut mostly stopped in forcing its
Speaker 1: anti contraception law, but since it was still in the books,
Speaker 1: this led to disparities and who could get contraceptives. Condoms
Speaker 1: were available at some drug stores, but they weren't an
Speaker 1: option for everyone, especially for people whose partners refused to
Speaker 1: wear condoms, or for people who needed a more discreet
Speaker 1: way to prevent pregnancy without their partner being involved. Middle
Speaker 1: and upper class people, especially married couples, who had money
Speaker 1: and access to private medical care, could usually find a
Speaker 1: doctor who was willing to provide them with contraception in
Speaker 1: spite of the law, or if not that at least
Speaker 1: to connect them with another provider in a state where
Speaker 1: it was legal. But poor people who didn't have these
Speaker 1: kinds of resources off and could not, and people of
Speaker 1: color who were working within their own communities as doctors
Speaker 1: were generally at a lot more risk than white doctors were.
Speaker 1: Compounding that, if they were arrested and lost their medical license,
Speaker 1: that could mean the loss of medical care for that
Speaker 1: whole community. That was something people had to take into
Speaker 1: account when deciding whether to try to get around the law.
Speaker 1: In nineteen forty, the Connecticut Supreme Court heard State versus Nelson,
Speaker 1: involving a case against two doctors who had been running
Speaker 1: a birth control clinic, one that authorities seemed to have
Speaker 1: ignored until clergy in the predominantly Catholic neighborhood where it
Speaker 1: was located demanded it be investigated. The doctor's attorneys argued
Speaker 1: that the anti contraception law shouldn't apply to them because
Speaker 1: they were prescribing contraception two married women for the sake
Speaker 1: of their health and well being. The court found that
Speaker 1: the law was unambiguous, contraception was illegal no matter who
Speaker 1: was prescribing it, and upheld it. After this, the state
Speaker 1: prosecutor agreed to drop charges against the doctors if they
Speaker 1: closed their clinic, which they did, and that led the
Speaker 1: other clinics in the state to also shut down. Yeah,
Speaker 1: there had been I mean this whole time, there had
Speaker 1: been people who were trying to provide birth control, and
Speaker 1: it was like the threat that since the state had
Speaker 1: upheld the law, that other clinics were also going to
Speaker 1: be targeted just led a lot of people to make
Speaker 1: the desisn't to shut down. So three years later, Yale
Speaker 1: Medical School professor Wilder Tileston filed suit on behalf of patients,
Speaker 1: arguing that the Connecticut law needed to have an exception
Speaker 1: for people whose lives would be at risk if they
Speaker 1: became pregnant. This led to the Connecticut Supreme Court case
Speaker 1: of Tileston versus. Ullman. Allman was the Connecticut States Attorney
Speaker 1: Abraham Ullman. The Connecticut Supreme Court rejected Tileston's arguments, noting
Speaker 1: that people already had a way to prevent pregnancy that
Speaker 1: was quote positive and certain in results. That method was abstinence.
Speaker 1: The U. S. Supreme Court heard oral arguments in this case,
Speaker 1: but eventually dismissed it quote. We are of the opinion
Speaker 1: that the proceedings in the state courts present no constitutional
Speaker 1: question which appellant has standing to assert. On June twenty three,
Speaker 1: nineteen sixty the f d A approved the first oral contraceptive.
Speaker 1: There's more about this in our Nelson Pill Hearings episode
Speaker 1: from May. By this point, public opinion polls suggested that
Speaker 1: more than seventy percent of people in the United States
Speaker 1: thought information about contraception should be legal. The introduction of
Speaker 1: oral contraceptives, which were in many ways more reliable and
Speaker 1: more convenient than other available methods of contraception, also added
Speaker 1: a renewed urgency to the effort to get Connecticut's law repealed.
Speaker 1: In nineteen sixty one, the U. S. Supreme Court heard
Speaker 1: two cases related to Connecticut's anti contraception law and was
Speaker 1: trueback versus Ullman. Again, that's the same Abraham Aulman as before.
Speaker 1: Louise and Dave Truebeck had gotten married in ninety eight
Speaker 1: while they were both students at Yale Law School. They
Speaker 1: wanted to have children one day. They did not want
Speaker 1: to have children where they were both in law school,
Speaker 1: but it was illegal for their doctor to discuss contraception
Speaker 1: with them. The true Back's case had originally been part
Speaker 1: of a group of other cases, but they elected not
Speaker 1: to remain anonymous and their case was heard separately. The
Speaker 1: other case was Poe versus Ullman, and it involved an
Speaker 1: anonymous couple and an anonymous married woman. The couple were
Speaker 1: known as Pauline and Paul Poe. They had had three children,
Speaker 1: all of whom had multiple congenital illnesses and had died
Speaker 1: as newborns. They thought it was unlikely that they could
Speaker 1: have a child that would survive infancy, and they wanted
Speaker 1: to avoid future pregnancies. The married woman was known as
Speaker 1: Jane Doe. She had had a stroke while pregnant and
Speaker 1: her child had been stillborn. She was disabled following the stroke,
Speaker 1: and it was unlikely that she could survive another pregnancy.
Speaker 1: These people all lived in Connecticut, where it was illegal
Speaker 1: for their doctors to discuss contraception with them. In a
Speaker 1: five to four ruling, the Supreme Court dismissed this case,
Speaker 1: finding that quote, the records in these cases do not
Speaker 1: present controversies justifying the adjudication of a constitutional issue. Justice
Speaker 1: Felix Frankfurter authored the opinion, which set in part quote,
Speaker 1: this Court cannot be umpire to debates concerning harmless empty shadows.
Speaker 1: In other words, because Connecticut wasn't really enforcing this law
Speaker 1: very strictly anymore, it was harmless and empty in the
Speaker 1: eyes of the Court. Also, because none of these plaintiffs
Speaker 1: had been arrested or convicted of anything, there was no
Speaker 1: injury for the Court to need to remedy. The Court
Speaker 1: also dismissed Trobec versus Allman without further comment. As part
Speaker 1: as the same set of decisions, the dissenting justices in
Speaker 1: Poe versus Almen all issued their own opinions, arguing, among
Speaker 1: other things, that people should not have to break the
Speaker 1: law to get basic health information and that there shouldn't
Speaker 1: need to be an arrest and conviction in order for
Speaker 1: the Court to rule on whether a law was unconstitutional.
Speaker 1: The dissent by Justice William O. Douglas said, in part quote,
Speaker 1: what are these people, doctor and patients to do flout
Speaker 1: the law and go to prison, violate the law surreptitiously,
Speaker 1: and hope they will not get caught. By today's decision,
Speaker 1: we leave them no other alternatives. It is not the
Speaker 1: choice they need have under the regime of the declaratory
Speaker 1: judgment and our constitutional system. It is not the choice
Speaker 1: worthy of a civilized society. A sick wife, a concerned husband,
Speaker 1: a conscientious doctor seek a dignified, discreete orderly answer to
Speaker 1: the critical problem confronting them. We should not turn them
Speaker 1: away and make them flout the law and get arrested
Speaker 1: to have their constitutional rights determined. So after this, it
Speaker 1: seemed like the Supreme Court would only be willing to
Speaker 1: examine Connecticut's law if somebody had been convicted of breaking it.
Speaker 1: So immediately after the Court announced its decision on June nineteenth,
Speaker 1: nine sixty one, Estelle Griswold and Charles Lee Buxton decided
Speaker 1: it was time to get arrested. Griswold was executive director
Speaker 1: of the Planned Parenthood League of Connecticut, Buxton was its
Speaker 1: medical director, and Jane Doe and Pauline and Paul Poe
Speaker 1: had been his patients. At this point. Planned Parenthood League
Speaker 1: of Connecticut had mostly been providing people with transportation to
Speaker 1: New York or Rhode Island, where contraception was legal, rather
Speaker 1: than directly providing contraception. But on June twenty, nineteen sixty one,
Speaker 1: just a day after the Supreme Court decision, Griswold and
Speaker 1: Buxton announced that they would be opening a contraceptive clinic
Speaker 1: in New Haven. The clinic opened on November one of
Speaker 1: that year, advertising its services specifically to married couples. They
Speaker 1: saw ten patients on the first day in operation, and
Speaker 1: they also held a press conference. Two days later, police
Speaker 1: stopped by, and Griswold helpfully told them all about the
Speaker 1: work they were doing, the contraceptives they were providing, the
Speaker 1: counseling that was available to patients, the literature they had available,
Speaker 1: and the fact that they knew it was all illegal.
Speaker 1: On June tenth, police returned with lawrence for Griswold and
Speaker 1: Buxton's arrest, and the clinic was shut down. Griswold and
Speaker 1: Buxton stood trial, and their attorneys argued that counseling married
Speaker 1: couples on the use of contraception was protected free speech.
Speaker 1: The two were convicted and find one hundred dollars each
Speaker 1: and after a series of appeals, their case was before
Speaker 1: the U. S. Supreme Court under Chief Justice Earl Warren.
Speaker 1: The Warren Court has come up several times on the show.
Speaker 1: Earl Warren was Chief Justice when Loving versus Virginia, Brown
Speaker 1: versus Board of Education, and Hernandez versus Texas were all decided.
Speaker 1: He was also Chief Justice during Yates versus United States,
Speaker 1: which we talked about in our episode on cohen'telpro. We've
Speaker 1: also talked about his time as Governor of California on
Speaker 1: a couple of episodes, including our two parter on Executive
Speaker 1: Order ninety six and the mass incarceration of Japanese Americans
Speaker 1: during World War Two. We will get to the Court's
Speaker 1: decision after we pause for a sponsor break. On June seven,
Speaker 1: five and a seven to two ruling, the U. S.
Speaker 1: Supreme Court issued its decision in Griswold versus Connecticut, and
Speaker 1: it overturned Connecticut's anti contraception laws. The justices who were
Speaker 1: part of the court authored multiple opinions in this case.
Speaker 1: Justice William O. Douglas, who had authored one of the
Speaker 1: descents and po versus Ullman, which read earlier, authored the
Speaker 1: majority opinion. Justice Arthur Goldberg wrote a concurring opinion that
Speaker 1: was joined by Justice William J. Brennan Jr. And Chief
Speaker 1: Justice Warren. Justices John M. Harland the Second and Byron
Speaker 1: White each issued their own concurring opinions, and then Justices Hugo.
Speaker 1: Black and Potter Stewart dissented, as they had also done
Speaker 1: in po versus Almond, and each of them wrote their
Speaker 1: own descents. The Court found that one Griswold and Buxton
Speaker 1: did have standing in this matter, something that had been
Speaker 1: an issue in those earlier cases. And the Court also
Speaker 1: found that quote the Connecticut Statute forbidding use of contraceptives
Speaker 1: violates the right of marital privacy, which is within the
Speaker 1: pnumbra of specific Guarantees of the Bill of Rights. So
Speaker 1: the easy part with that is that the Court found
Speaker 1: Connecticut's ban on contraceptives to be unconstitutional, But the rest
Speaker 1: of it is a little trickier because a right to
Speaker 1: marital privacy isn't mentioned or enumerated in the Constitution. Like
Speaker 1: we set up at the very top of the show,
Speaker 1: substantive due process is the idea that the courts can
Speaker 1: protect unenumerated rights, and in Griswold versus Connecticut. The court
Speaker 1: was arguing that the rights of privacy was found in
Speaker 1: the pannumbra, or the shadow of other rights that are mentioned.
Speaker 1: The majority opinion referenced a series of previous cases in
Speaker 1: which protected rights were interpreted as being broader than what
Speaker 1: was spelled out in the Constitution. For example, in Mayer
Speaker 1: versus State of Nebraska, the court had struck down a
Speaker 1: law mandating that children be taught only in English through
Speaker 1: the eighth grade. The court found that this violated the
Speaker 1: due process clause of the fourteenth Amendment, which says that
Speaker 1: no state shall quote deprive any person of life, liberty,
Speaker 1: or property without due process of law. In this case,
Speaker 1: a teacher in a Lutheran school was teaching reading in German,
Speaker 1: and the court found that even though the fourt Amendment
Speaker 1: didn't reference things like languages other than English, quote, his
Speaker 1: right thus to teach, and the right of parents to
Speaker 1: engage him so to instruct their children, we think are
Speaker 1: within the liberty of the Amendment. The majority opinion in
Speaker 1: Griswold versus Connecticut then ticked through a series of similar
Speaker 1: cases and their associated freedoms. Like in earlier cases, the
Speaker 1: court had found that the First Amendment protection of free
Speaker 1: speech also included the right to read and to receive information.
Speaker 1: The Court had also described the First Amendment freedom to assemble,
Speaker 1: as extending to the freedom of association with other people.
Speaker 1: So assembly did not just mean physically going to a meeting.
Speaker 1: It also involved being affiliated with a group and expressing
Speaker 1: personal philosophies through being a member of that group. Having
Speaker 1: been through all of that, the majority opinion read quote
Speaker 1: the foregoing cases suggests that specific guarantees in the Bill
Speaker 1: of Rights have pnumbers formed by emanations from those guarantees
Speaker 1: to help give them life and substance. Various guarantees create
Speaker 1: zones of privacy. The right of association contained in the
Speaker 1: pannumbra of the First Amendment is one, as we have seen.
Speaker 1: The Third Amendment, in its prohibition against the quartering of
Speaker 1: soldiers in any house in time of peace without the
Speaker 1: consent of the owner, is another facet of that privacy.
Speaker 1: The Fourth Amendment explicitly affirms the right of the people
Speaker 1: to be secure in their persons, houses, papers, and effects
Speaker 1: against unreasonable searches and seizures. The Fifth Amendment, in its
Speaker 1: self incrimination clause, enables the citizens to create a zone
Speaker 1: of privacy, which government may not force him to surrender
Speaker 1: to his detriment. The Ninth Amendment provides the enumeration in
Speaker 1: the Constitution of certain rights shall not be construed to
Speaker 1: deny or disparage others retained by the people. Yeah, that
Speaker 1: last one basically means just because a specific right is
Speaker 1: not mentioned in the Constitution, that doesn't mean that right
Speaker 1: doesn't exist. Like just not saying every single right on
Speaker 1: the planet has to be specifically named or it's not
Speaker 1: a real thing. This decision went on to build the
Speaker 1: idea of a zone of privacy that was specifically related
Speaker 1: to a marital relationship. Quote. The present case then concerns
Speaker 1: a relationship lying within the zone of privacy created by
Speaker 1: several fundamental constitutional guarantees. And it concerns a law which,
Speaker 1: in forbidding the use of contraceptives, rather than regulating their
Speaker 1: manufacture or sale, seeks to achieve its goals by means
Speaker 1: having a maximum destructive impact upon that relationship. It went
Speaker 1: on to rhetorically ask, quote, would we allow the police
Speaker 1: to search the sacred precincts of marital bedrooms for telltale
Speaker 1: signs of the use of contraceptives? The very idea is
Speaker 1: repulsive to the notions of privacy surrounding the marriage relationship.
Speaker 1: So all those various concuring opinions agreed with the idea
Speaker 1: that the right to privacy could be inferred from some
Speaker 1: part of the Constitution. They just all differed a little
Speaker 1: bit on exactly how or where. And then the two
Speaker 1: dissenting justices made it clear that they did not like
Speaker 1: this law either, even though they didn't find that there
Speaker 1: was a constitutional reason to overturn it. Justice Hugo Black's
Speaker 1: descent read in part quote, I feel constrained to add
Speaker 1: that the law is every bit as offensive to me
Speaker 1: as it is to my brethren of the majority, and
Speaker 1: my brothers Harlan White and Goldberg, who, reciting reasons why
Speaker 1: it is offensive to them, hold it unconstitutional. Justice Potter
Speaker 1: Stewart wrote in his dissent quote, I think this is
Speaker 1: an uncommonly silly law. As a practical matter, the law
Speaker 1: is obviously unenforceable except in the oblique context of the
Speaker 1: present case. It's a philosophical matter. I believe the use
Speaker 1: of contraceptives in the relationship of marriage should be left
Speaker 1: to personal and private choice. They based upon each individual's moral,
Speaker 1: ethical and religious beliefs. As a matter of social policy,
Speaker 1: I think professional counsel about methods of birth control should
Speaker 1: be available to all so that each individual's choice can
Speaker 1: be meaningfully made. But we are not asked in this
Speaker 1: case to say whether we think this law is unwise
Speaker 1: or even assinine. We are asked to hold that it
Speaker 1: violates the United States Constitution, and that I cannot do.
Speaker 1: The majority, though, had found that it violated the Constitution,
Speaker 1: and by finding Connecticut's anti contraception law unconstitutional, the Supreme
Speaker 1: Court made contraception and contraceptive counseling legal nationwide in the
Speaker 1: context of married couples. So this also struck down the
Speaker 1: anti contraception language in the Comstock Act, which was still
Speaker 1: on the books. So this was a victory in terms
Speaker 1: of access to contraception, but it was definitely incomplete. Number One,
Speaker 1: it applied only of married couples. The focus was on
Speaker 1: the idea that privacy was intrinsic to a married relationship,
Speaker 1: so laws forbidding contraceptive use or counseling for single people
Speaker 1: were unaffected. Number two, This idea that there were pnumbras
Speaker 1: creating zones of privacy was immediately controversial. There were and
Speaker 1: continue to be legal scholars who argued that this isn't
Speaker 1: really a thing and that this was faulty reasoning on
Speaker 1: the part of the justices. Beyond that, there were people,
Speaker 1: particularly women's rights activists, who raised concerns about this ruling's focus.
Speaker 1: There is no constitutional guarantee of equal rights for women
Speaker 1: in the United States, and at this point, the Equal
Speaker 1: Rights Amendment had not yet been passed by Congress. As
Speaker 1: we discussed in our previous episode on the Equal Rights Amendment.
Speaker 1: Even though Congress did eventually pass it, not enough states
Speaker 1: ratified it by the deadline for it to become part
Speaker 1: of the Constitution. So there were a lot of women
Speaker 1: in particular who thought that the court should have used
Speaker 1: a different reasoning, like maybe one that interpreted the Fourteenth
Speaker 1: Amendments equal protection and do process clauses as protecting a
Speaker 1: woman's right to bodily autonomy. We recognize that not everyone
Speaker 1: who can get pregnant is a woman, including trans men
Speaker 1: and non binary people, and that there were also plenty
Speaker 1: of people living at the time who were living outside
Speaker 1: the gender binary in various ways. But really the focus
Speaker 1: of the response of this in nineteen sixty five was
Speaker 1: on women. During research for this episode, Tracy read a
Speaker 1: paper in the American Historical Review suggested that this privacy
Speaker 1: angle might have been influenced by the Wolfenden Report, which
Speaker 1: was published in the u K in nineteen fifty seven.
Speaker 1: This report followed a rise in convictions for breaking laws
Speaker 1: against homosexual behavior, including convictions of some high profile men.
Speaker 1: A committee was formed to investigate UK laws around homosexuality
Speaker 1: and sex work, and it recommended decriminalis a sation of homosexuality.
Speaker 1: In the words of that report, their quote must remain
Speaker 1: a realm of private morality and immorality, which is, in
Speaker 1: brief and crude terms, not the law's business. But if
Speaker 1: this idea influenced the thought process of the justices in
Speaker 1: Griswold versus Connecticut, it didn't make its way into Supreme
Speaker 1: Court decisions about same sex relationships until much later. As
Speaker 1: we said at the top of the show, the Supreme
Speaker 1: Court decision in Griswold versus Connecticut and the reasoning that
Speaker 1: was used to make that decision have become part of
Speaker 1: a lot of other cases. In nineteen sixty nine, the
Speaker 1: Supreme Court sided Griswold be Connecticut, and its decision in
Speaker 1: Stanley versus Georgia, which found that possession of obscene materials
Speaker 1: was protected in part because of a right to privacy.
Speaker 1: In ninety two, the Court struck down in Massachusetts law
Speaker 1: banning the distribution of contraceptives two unmarried people. Although the
Speaker 1: question before the court was whether this law violated the
Speaker 1: privacy standard established in Griswold versus Connecticut, the Court found
Speaker 1: that it violated the Fourteenth Amendment Due process clause. In
Speaker 1: nineteen seventy three, the Court issued its decision in Row
Speaker 1: versus Wade, finding the right to privacy established in Griswold
Speaker 1: as being inherent in the due process clause of the
Speaker 1: Fourteenth Amendment and also extending to a person's decision to
Speaker 1: terminate a pregnancy. But the Court also ruled that this
Speaker 1: right had to be balanced out with other concerns related
Speaker 1: to protecting a person's health and to quote, the potentiality
Speaker 1: of human life. In nine six, the Supreme Court cited
Speaker 1: Griswold versus Connecticut and its ruling in Bowers versus Hardwick,
Speaker 1: which upheld a Georgia law banning sodomy. Although attorneys had
Speaker 1: argued that sodomy was protected under the right to privacy
Speaker 1: that was established in Griswold. The Court disagreed. This ruling
Speaker 1: was overturned in two thousand three in Lawrence versus Texas,
Speaker 1: which was related to both the right to privacy and
Speaker 1: to the due process clause of the Fourteenth Amendment, and
Speaker 1: the Court once again issued a ruling that was partly
Speaker 1: underpinned by Griswold versus Connecticut, and that was Oberga Fell
Speaker 1: versus Hodges. This decision recognized same sex marriages as legal nationwide,
Speaker 1: and it cited Griswold at several points, including the decisions
Speaker 1: description of marriage as a right that's older than the
Speaker 1: Bill of Rights. And most recently, the Court issued its
Speaker 1: decision in Dobbs versus Jackson Women's Health Organization, overturning Roe v. Wade.
Speaker 1: This decision also overturned Planned Parenthood v. Casey, in which
Speaker 1: the Court had upheld Roe v. Wade and a constitutional
Speaker 1: right to abortion. In the court's opinion, written by Justice
Speaker 1: Samuel Alito, noted that the Constitution makes no mention of abortion,
Speaker 1: something also true of the right to privacy established in
Speaker 1: Griswold versus Connecticut, but in the Court's opinion, Roe versus
Speaker 1: Wade was different from Griswold versus Connecticut because it did
Speaker 1: not involve quote, the destruction of what Row called potential life.
Speaker 1: So the majority opinion in this case noted the connection
Speaker 1: to several cases we just mentioned. There was Griswald, there
Speaker 1: was Eisenstat versus Bared, which is the one that overturned
Speaker 1: the Massachusetts law barring contraception for unmarried people, and also
Speaker 1: Oberger Fell, calling the fear that the Dobbs decision would
Speaker 1: apply to those rulings as quote unfounded. But as we
Speaker 1: said at the top of the show, and his concurring opinion,
Speaker 1: Clarence Thomas wrote that future cases should reconsider rulings that
Speaker 1: have relied on substantive due process, including Griswald, Lawrence, and
Speaker 1: Oberger Fell. So that suggests otherwise, um, that is Griswold
Speaker 1: versus Connecticut, which, as a side of the top of
Speaker 1: the show, working my way through all that made it
Speaker 1: a lot easier for me to understand what the logic
Speaker 1: had been behind the ruling in Row versus Wade. Do
Speaker 1: you have some listener mail, I do I have. I
Speaker 1: know there's a lot of things in this episode that
Speaker 1: are tough for a lot of folks to think about.
Speaker 1: So I chose a listener mail that is just about cats. Uh.
Speaker 1: This is from Jan. Jan wrote, Hi, Holly and Tracy,
Speaker 1: writing to tell you how much I love your Steff
Speaker 1: fumus in History podcast. I appreciate all of your research
Speaker 1: into things I've never heard of before. I always learn
Speaker 1: a lot from you too, as well as Holly's podcast
Speaker 1: Criminalio with Maria TREMARKI. Both are always excellent. I also
Speaker 1: wanted to shamelessly pull out of old Tommy wallet with
Speaker 1: photos and brag about my kittie. Her name is Princess
Speaker 1: Peach a k A. Peach or Peachy, and she has
Speaker 1: a weird habit. She steals single socks from either the
Speaker 1: dirty clothes hampers or the clean sock bucket. I have
Speaker 1: brought her and her sister Rosalina many toys, but when
Speaker 1: we come home there's inevitably a number of single socks
Speaker 1: she has picked up while we have been out, and
Speaker 1: they're all sitting at the top of the stairs where
Speaker 1: she waits for us. She likes to carry them around,
Speaker 1: singing the song of her people. She either thinks their
Speaker 1: prey or her babies. I can't decide, because sometimes she
Speaker 1: does that model pose where she's half laying down and
Speaker 1: half sitting, and she'll lounge like that with her sock.
Speaker 1: Other times she likes to attack her sock, or drop
Speaker 1: it from a high place and attack it. So the
Speaker 1: weirdest thing about the socks, though, is the fact that
Speaker 1: sometimes she likes to take them for a dip. Literally.
Speaker 1: I cannot tell you how many times we have thrown
Speaker 1: a sock away because we find she has dropped it
Speaker 1: and then abandoned it into the toilet. She also likes
Speaker 1: to dunk them in her water bowls. Sometimes I find
Speaker 1: a soggy sock on the floor and I cringe, wondering
Speaker 1: if it's toilet water or her drinking water, especially since
Speaker 1: I have four young kids who sometimes don't flush. Here
Speaker 1: are a few photos of Peachy. She has axema and
Speaker 1: scratches her face to bits. She's on pills now and
Speaker 1: sometimes she has to wear funny collars. Thanks for letting
Speaker 1: me tell some strangers about my kitty, and thank you
Speaker 1: for being so great about letting adults continue to learn
Speaker 1: new things about history. It was always a favorite in school,
Speaker 1: and your work as a bomb for me. Jan Um
Speaker 1: and so uh Jan has lots of pictures of kitty cats. Um,
Speaker 1: and they are all incredibly adorable. One includes one of
Speaker 1: the kitties as a teeny teeny baby kitten sitting on
Speaker 1: top of one of those toilet paper holders. Um. That's
Speaker 1: like a little like almost a little cage for the
Speaker 1: toilet paper roll to sit on its side. It's incredibly cute. Um.
Speaker 1: One of the reasons that I wanted to read this episode,
Speaker 1: besides just the part that it's just about kitties, is
Speaker 1: that one of my cats, Opal also seems to have
Speaker 1: a weird fixation with the toilet. Uh, not with sacks,
Speaker 1: just with the toilet. What she will do is she
Speaker 1: will chase you into the bathroom when you go to
Speaker 1: use the bathroom, and then when we always put the
Speaker 1: lid down so that the cats don't get into the water,
Speaker 1: and she will jump onto the lid, and as you
Speaker 1: try to flush the toilet, she will try to attack
Speaker 1: your hand. And I don't understand what the processes here, um,
Speaker 1: but if if she is prevented, like I sometimes will
Speaker 1: just kind of hold her back a little bit because
Speaker 1: I don't I don't want her to grab my hand
Speaker 1: while I'm trying to flash the toilet. She will look
Speaker 1: with a very betrayed expression and then try to try
Speaker 1: to like grab your hand as you take it away
Speaker 1: from the toilet handle. Um, I don't know what's up
Speaker 1: with that kiddie behavior. But man, all of these Princess
Speaker 1: Peach is cute. Yeah, all of these pictures are so cute.
Speaker 1: And there's also a little video of like the trail
Speaker 1: of socks um across the house. Uh So, anyway, thank
Speaker 1: you so much Stan for all of these cat pictures
Speaker 1: in this cat story, like it all brightened brightened my
Speaker 1: day to read all of this. So if you would
Speaker 1: like to uh send us a note about this or
Speaker 1: any other podcast where History podcast that I hurt radio
Speaker 1: dot com. We're also all over social media at missing History.
Speaker 1: That's where I'll find our Facebook, Twitter, Interest, and Instagram.
Speaker 1: And you can subscribe to our show on the I
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Speaker 1: Stuff You Missed in History Class is a production of
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