Introduction: <i>Griswold v. Connecticut</i>

On April 30, 2015, three historians, two law professors, and a physician assistant met in New Haven to mark the fiftieth anniversary of Griswold v. Connecticut. This landmark 1965 Supreme Court decision overturned an 1879 state law that made the use of contraceptives a criminal offense. It did so on the grounds that the statute violated a constitutional right to privacy for married couples, the first time such a right was invoked.*Our retrospective was one of many such events held during Griswold's semi-centennial year, though perhaps more interdisciplinary than most. The wide-ranging and thoughtful contributions of the distinguished group of panelists, which are published here, suggest why this attention has been entirely warranted.In a wryly humorous account of her experience as a witness in the case, Rosemary A. Stevens, a historian of medicine and public health, re-creates the tensions that surrounded birth control in the early 1960s. Juxtaposing past and present, she highlights the absurdities of the law and of the test case itself, while also illuminating significant changes in American sensibilities about sexuality during the past half century.Two legal scholars shed light on Griswold's past and present standing. Reva Siegel provides a sweeping analysis of the intellectual and social context that produced Griswold in the first place and the complicated process by which the right to privacy became inscribed in law, a process in which political conflict played a central part. Taking a close-up approach, Linda Greenhouse zeroes in on Griswold's impact on the Court's decisions on abortion (Roe v. Wade) and same-sex marriage (Obergefell v. Hodges).Beyond Griswold's legal standing, panelists addressed its practical impact on women's ability to control their fertility. Heather Munro Prescott, a historian of medicine and gender, documents the activism of young women, many of them college students, in claiming access to birth control in the immediate aftermath of the decision: unmarried partners had to wait seven more years before contraceptives became legal for them. Taking the long view, Judy Tabar, a seasoned leader of Planned Parenthood, provides a detailed account of Griswold's pivotal role in expanding women's access to contraception and reproductive health care, indeed to health care generally. At the same time, she notes persistent inequities in the distribution of this care across class and race.Our deliberations in April celebrated the continued relevance of Griswold in American law and society. We could not know the central role it would play in Obergefell, which had been argued two days before we met and would be decided two months later. Even beyond the issue of privacy, as Linda Greenhouse makes clear, Griswold's sanctification of the marriage relation and its uncoupling of marriage (and sex) from procreation were central to the majority opinion written by Justice Kennedy that proclaimed same-sex marriage the law of the land. Griswold was thus central to the affirmation of a new constitutional right, one that was unimaginable in 1965.But if Obergefell extended Griswold's reach, events since the spring have demonstrated the vulnerability of its legacy. By the time this issue of Connecticut History Review went to press in November, Republicans in the House of Representatives had once again mounted an attack on abortion, voting to defund Planned Parenthood and threatening to withhold authorization of a federal spending bill unless additional anti-abortion measures were passed, a move that would effectively shut down the government.These initiatives were not expected to become federal law, but continuing controversy over Griswold and its progeny is not surprising. Given deeply divided opinion and the unsettled state of law concerning sex and family, it is likely that such skirmishes will continue. This may be disheartening, but it is well to keep in mind Reva Siegel's insight that it has been through conflict that Griswold has become entrenched in law. Fortunately so, because as these contributions attest, Griswold has been of central importance in expanding the life options of American men and especially women during the past half century. It is difficult to imagine contemporary life without it.Given Connecticut's current standing as a blue state, it is sometimes difficult to recall that at one time the state's color was a decidedly different hue. In fact, Connecticut has the dubious distinction of having passed the most restrictive law regulating contraceptives and of retaining it longer than any other state.Birth control came under government surveillance in the late-nineteenth century with passage of the Comstock Act in 1873, a Congressional measure that banned the circulation of “obscene literature and articles of immoral use” through the U. S. mails; the category included contraceptives and information about them, as well as about abortion. States followed with their own “little Comstock Acts,” many of which forbade the circulation of information about contraceptives as well as their transport; some states exempted doctors. But Connecticut's 1879 law—the one overturned by Griswold eighty-six years later—made the use of contraceptives a criminal offense, punishable by a fine and jail, penalties also applicable to anyone who aided or abetted their use.Through the efforts of Margaret Sanger and other reformers, restrictions on birth control declined in the first half of the twentieth century. A federal appellate court took a significant step in this direction in 1936 when it held that contraceptives prescribed by physicians could not be considered immoral under the Comstock Act and could legitimately be sent through the mail. The following year, the American Medical Association officially endorsed their use. Even before these developments, contraception had become more socially acceptable—and more accessible, as birth control clinics multiplied across the nation. Clinics came and went, but one informed estimate places the number at some 500 in 1940.And Connecticut?Following its founding in 1923, the Connecticut Birth Control League (later Planned Parenthood League of Connecticut) made repeated efforts to have the anti-contraception law repealed or else modified to allow for a “medical exception.” But the state legislature refused to budge. After a particularly disheartening defeat, the organization skirted the law by opening a birth control clinic in July 1935 in the state's capital, which they named the Hartford Maternal Health Center. True to the clinic's mission of providing contraceptives for low-income women, fees were based on a patient's ability to pay and were waived entirely for the poorest; women of means received referrals to private physicians.The clinic idea caught on. By the beginning of 1939, there were nine operating in cities across the state; women living in unserved areas might secure “motor-corps” transport to these centers. The clinics succeeded in reaching their target population, including immigrants, the unemployed, and welfare recipients. Perhaps most surprising, Catholic women constituted a large minority of those served—even a majority at some clinics—despite the Church's fierce opposition to birth control. But a police raid in June 1939 signaled trouble, as it closed the Waterbury clinic and led to the arrest of two doctors and a nurse. Birth control advocates waged a massive campaign to mobilize public opinion. But after an adverse judicial ruling in 1940, the state organization closed all the clinics, a move that effectively deprived low-income families of access to contraceptives.Despite periodic legislative and judicial initiatives, there matters more or less remained until the mid-1950s, when Estelle Griswold, a dynamic and determined leader who had set out to be a professional singer, became executive director of the Planned Parenthood League of Connecticut and Dr. C. Lee Buxton became head of Yale's Department of Obstetrics and Gynecology and director of its infertility clinic. With the aid of Yale Law School professors Fowler V. Harper and Thomas I. Emerson, and Catherine Roraback, a graduate of the law school and a staunch defender of civil liberties, they set to work to overturn the law in the courts. In 1961, the Supreme Court dismissed an appeal of one such case, on the grounds that because the law was not enforced, “this Court cannot be umpire to debates concerning harmless, empty shadows.”Griswold and Buxton sprang into action and on November 1, 1961, opened a clinic at 79 Trumbull Street, a few blocks from the New Haven Omni, where our roundtable met. With their arrest and the closing of the clinic ten days later, the test case that became Griswold v. Connecticut was on.