Transcripts For CSPAN3 Landmark Cases Supreme Court Landmark Case Griswold V. Connecticut 20240712

Historic Supreme Court decisions. Mr. Chief justice may appease the port. Quite often in many of our most famous decisions, once that the court took quite unpopular. Let us go through a few places that illustrate very dramatically and visually, what it means to live in a society of different people who helped stick together because they believed in a rule of law. Good evening. Tonights landmark cases, 1960 fives griswold v. Connecticut, with a seven to two decision, the justices in this case establish a constitutional right to privacy. Its set in motion the expansion of privacy rights that continue till today over the next several decades. To give you a sense of continuing importance in our society, we put together a short video that is a modernday reference to the grizzle case. There is wild v connecticut, which recognized a right to privacy in the constitution i agree with the griswold v. Connecticut that marital privacy extends to contraception griswold v. Connecticut griswold v. Connecticut back in this city of connecticut there was a case known as griswold v. Connecticut lets talk a little bit about griswold v. Connecticut here. What is it about griswold v. Connecticut that gives it its lasting importance . We will learn about it in the history of this case and the interesting people involved with it. Our two guests at the table for the next 90 minutes helen alvare law is a professor and author of numerous books. Her latest is called putting childrens interest first. Rachel rebouche is a dean for research in philadelphia, coauthor of a book called governance feminism. Let me just ask the basic question of why is greens wild so important it was a landmark case when it was decided in 65 the Birth Control pill hit u. S. Markets. It is a landmark case now because it was a path for cases the citing abortion rights, sexuality, sexual expression. Same sex marriage. It is also a warning to states about how to use the criminal Justice System to police peoples most intimate, fundamental decisions. What are your thoughts on the landmark nature of this case . It is a declaration of the right of privacy, which is not in the text of the constitution, and all of the justices discussions is it safer judges to be finding right that are deemed fundamental, very important liberty rights, that are not in the text of the constitution . How do we find these . How far do we go. It has set the path, as rachel said, for all the later decisions on sexual expression and marriage based on that finding of privacy. Is there a consensus about griswold . No. I would say there are, many people cited a couple of cases that griswold cited. Where does send their kids to school. Parents deciding about their kids education. A lot of conservatives would say yes, those rights exist. Some would say it is always dangerous when five unelected justices or more discoverer right that is not in the text of the constitution. How far will they go . Is there a liberal point of view that encapsulates griswold . Griswold tied the right to Birth Control and the right to contraceptive use to a broader agenda for prereproductive rights. Over the years, since 1965, that agenda has been more closely associated with the womens Rights Movement and with feminism, and with womens equality education, politics in the workplace. Is that a consensus . Not sure it is a consensus, but i think when you ask most we think of themselves as progressives, they would come up with some of those reasons as to why griswold is important. Another interesting cast of characters. There is a stealth griswold. I still griswold is a women who has a very serious she is married to someone in the state department and she ends up doing some International Work in this area, and she decides that the connecticuts law is oldfashioned and needs to be done away with. She decides to form a clinic and to deliberately violate the law and get before the court, and get the connecticut statute looked at once and for all. We are also going to meet doctor li bucks ten. He was a chair of yales ob gyn department, the only medical school in the department came up with a strategy with a test case that would be come griswold v. Connecticut to strike down the ban on contraceptive use for merit people. He felt a personal responsibility to the patients. He saw sufferings and presents pregnancy complications. Access to legal contraceptives in the state. There was a female lawyer we will learn about. She is a real figure in history. She was the only woman and the class. When she graduated from law school. She was associated with a number of really significant lawsuits, including not only this case, which she worked on through the Supreme Court. She did not actually do the arguing, but she did get to the connecticut Supreme Court. She was later so she added with the defenses of the black panthers she felt very strongly about womens rights and about the contraception. Our last cast of characters is Thomas Emerson. Emerson argued the case for the griswold legal team for the Supreme Court. He was a yale law professor who took over on the test litigation, when professor harbor fell sick. You are both talking before before the program started about the yale connections. So many aspects of this case seem to intersect with yale. Is it just a coincidence . It was not connecticut. Yale has be a preeminent law school for a great team of time. Probably you could say at that time and now for being unafraid to do controversial things. You have griswold is married to someone from yale. You have doctor buxton who is on the faculty of yale. Quite a few links. Also, apparently griswold made a mean martini and had cocktail parties at which they would gather. It was that one Cocktail Party that they came up with a strategy for one of the early cases that proceeded for griswold. There is that. This was referred to as a comstock law. Can you give us a quick history of cup stop comstock was . It passed an 1873 it is named after anthony comstock, who founds the new york society for the suppression of vice. At some point he brags that he has confiscated 160,000 pounds of books. 95,000 articles and 16,000 implements of rubber for immoral purposes. Not my quote. His. It makes it a crime to male obscene material, contraceptives being an obscene material. Then mailed them to mail information about them. Information about how to find out about information about contraceptives. This is 1873, when the comstock law was passed. We are talking about a case from 1961. Were comstock laws on the books in a lot of states at this point . Almost half the states in the country. I think it was around 24 states. Considering that some states came in later, so more than half at the time. I think connecticut goes on the book in 1879. Fascinatingly, the state representative was speaking barnum. Yes, from barnum circus. That law stays on the books, ruled at the time of this case. By the time this case comes around, really, only connecticut and massachusetts have the laws in the books. Connecticuts law the federal law was really concerned with mailing these. Connecticuts law is concerned with the people who use them and concerned with people who aid and abet them. Its been about ten minutes. We will go to your phone calls. Khoury will involve you in the discussion and we look forward to your comments. You can send us a tweet. Use the hashtag landmark cases. There is a discussion underway on cspans facebook page. That is your primary means of connecting socially, and you can join the conversation there. Please do get involved in this discussion on griswold v. Connecticut, which established the right to privacy, not enumerated in the constitution. Some of the text of the connecticut law read this way. Any person who uses any drug medicinal article or instrument, for the purpose of preventing contraception, shall be fined not less than 50 dollars or imprisoned not less than 60 days nor more than one year or be both fined and imprisoned. In reality, by 1960, how often was this law enforced . Were people getting arrested for . It is hard to arrest someone for the use of contraceptives, so that is where part of the statute that made it a crime to aid and abet was really important. By and large, the people were not getting arrested. Condoms put aside were visible in drugstores. It was available for the purpose of disease prevention and womens hygiene. As long as you sold a contraceptive device or contraceptive drug for other than contraceptive reasons, it was legal. Of course that did not include the diaphragm or the pill. Those were still hard to come by. Were people getting prosecuted . No. Although in early cases in 1940, a clinic was rated rated. Nurses and doctors were prosecuted. They went before the connecticut Supreme Court and they lost they said there were no exceptions, not even for doctors prescriptions. These doctors were told by a local attorney that writing prescriptions would be an exception to the law, based on other cases in other states. The Supreme Court of errors held that that was not the case and there were no exceptions for connecticut la. But it was not refer to are taking up at the Supreme Court. No, it was not appeal to the Supreme Court. There were earlier federal to overturn connecticut scum stop loss. Tilston versus omen in 1943. Then poll versus omen in 1961. Very close to the time what was happening with these cases . This was the doctor trying to argue that the patients life was at stake. The court said, im sorry, you do not have standing to assert your persons your patience interest. In 1961, they wanted declaratory judgment that this law could be enforced against them. The court said its not right. It is not a controversy. Nobody has been arrested. Nobody has been can vic did so it is just not right. But if you look at poe versus omen, you have yourself a griswold v. Connecticut in miniature. You could extract the language from that case. It is ripe, and by the way this is how it would be decided if it came before me. We have a regular viewer of our series our wild and wonderful rights the penal aspect of the comstock laws are rather ironic and so far resistant and prison is another way to prevent contraception. Clever. We get to 1961. Here is the headline in the New York Times. Connecticut clinic to test Birth Control law. There were a group of people in connecticut who decided they wanted to put this law to rest. What was the role of planned Parenthood Organization on this . Planned parenthood led by Estelle Griswold, had recruited the three patients that would become the petitioners it led by doctor buxton and dr. Buxtons patients. She was instrumental in helping find the patience to decide on that strategy. Planned parenthood then was instrumental in figuring out that once poe once the Supreme Court would dismiss the appeal for poe because of the lack of prosecution, no credible prosecution, it was planned parenthood that helped that was the engineer of a strategy to set up a clinic so that the director and medical director couldnt get arrested testa connecticut law. So parenthood was operating around the state at this point . Estelle griswold had explicitly set up a planned parenthood there. There had been another area. They had been in hartford, new haven. They had actually a number of clinics that were operating throughout the state, and in the case that i mentioned, they all closed after that case. And they started setting up clinics for educational purposes to lobby the legislature. New haven clinic issued and griswold is the clinic that was noted before, that other clinics and other places were just doing educational other services that were not bent by the law. Although, Estelle Griswold reportedly drove around the state with diaphragms in her car trunk, as well as planned parenthood whiskey in helping her get across state lines so they could seek concept is legally in other jurisdictions. Weve got video from 1962. Cbs network did a report on the connecticut Birth Control debate. Whats great about this and youre going to see doctor lee bucks done and Estelle Griswold in their own words, describing how they put this test case together. Doctor buxton, how did you become involved in this Birth Control case . Im interested in taking care of patients in this institution. Im prevented from taking care of patients the way they should be taken care of because of a law that exists. I just happen to believe something should be done about it. If a woman could afford to go a private doctor and pay a fee, she can get contraceptive advice and connecticut. But if she has not the money to go to a private doctor, and she is a patient in our clinic here for instance, she cannot get contraceptive advice here, because we are not allowed to have a Family Planning clinic, and they are the ones who really need contraceptives, from a social economic as well as Health Care Point of view and they are being discriminated against because of their economic status. As you said, most people who could afford it cant get contraceptive information. How many people would you say there are in the state of connecticut who are breaking the law every day . Connecticut has the largest birth rates in the state of every night in states. You cannot tell me that that is because our puritan in their catholic ideas. Mrs. Estelle griswold, is executive director of the new haven Birth Control clinic. I think it is very evident that the law is unenforceable. If you had a policemen and the state of connecticut, they could still not prove anything. We are continuing maybe illegally, but we are continuing our program of education and referral. Many women come in for information and willing to get help. For the past four years, we have been referring women to the three out of state centers, and we have been subsidizing financially for quite some time, to help these cases. I would say that we had approximately 20,000 women go out in the last four years. Theres some interesting aspects of that. First of all, both of them making the economic argument. What is your reaction to that . Over the years, especially poor minority women have sometimes asked the question. When doctor buxton said, these are the people that really need it in the literature, even today in the contraception bag aziz, there is a question as to whether there is some preliminary women feel that people who are better off really want them to have it. We have the controversy of president nixons National Security memorandum where he says we have to conscious at the third world, because they will be threatening us with their numbers. You have the debate in the 1990s when they were giving nor plants a kind of a longer acting contraception, to poor women into cities an exchange for money and gift cards. It makes a lot of sense to people. Oh my goodness, people cant afford an x number of children. But it also has engendered a bit of a backs backlash. I think that there is a complicated story. Reproductive justice advocates have made it a centerpiece of their advocacy to talk about how certain Family Planning projects really turned it in two women of color. At the time that griswold was being decided, states were not just repealing their contraceptive loss, states are passing laws creating programs to provide Family Planning. So there is at this moment a population movement, a population control dynamic happening. That said, i think it is really fascinating that one of the understudy is that the clinic saw itself as providing Economic Justice for its clients. It was a public clinics clinics serving women who cannot afford private doctors and could not get into their cars and drive to rhode island. The message about curtailing poverty and properties effects on reproductive choices an important one. I think even with its darker side, its something to think more about. Were going to pause for a few minutes and our narrative. Lets take calls. This is peter from pennsylvania. You are on the air. Thank you. I cant believe my good fortune to get to speak to you again. This case is really fascinating. For a long time, i thought it was the case about reproductive choice, reproductive freedom, Family Planning, etc, but have since learned it centers on privacy. This really confounds me, because here we are over 50 years later. I am like, where is my right to privacy . Why has this not been extended . As you said, i live in pennsylvania. Im pretty sure that if i grew certain plants in my home, especially cannabis for my own use, i could get in trouble. Im pretty sure if i set up a wonderful device for distilling the essence of a fermented grains for my whiskey, im pretty sure i could get in big trouble for that. Im not i might get in trouble even for producing tobacco for my own use, without paying taxes and getting permits. So please, please, why has griswold v. Connecticut not been used to extend everybodys privacy rights and maybe put an end to an insane world on drugs . Thank you peter. Thank you for your call. I think one answer is that the right to privacy articulated in griswold talks about the court could find that right to privacy to personal relationships in many ways, to a sphere of marriage, parenting, sexual expression, and here im talking about a trajectory from 1965 to 2018. But cab and off the same types of inquiry for Economic Affairs for markets. A lot of what you are describing, the court has said, implicates business affairs, states regulations, markets. You may not be satisfied with this answer, but the court has made this distinction. Privacy has its limits, which i think we will discuss. Josh is up next in iowa. Hi, josh. Hi. How consequential of a justice was way not just in this case, been in the overall history of the court . Thank you. I have to say, i think his being consequential has a lot to do with this case because he articulated a right of privacy again that was not in the text of the constitution. It indicated very much an opinion on behalf of living constitutionalism. When i went back and we read his dissent in pole versus omen, we read his opinion in griswold, i was struck by how many of the phrases about a living constitution are still in contest today. I think a lot of his importance deal with it. I would defer to others as to later cases that he was a part of because i dont know quite as well. Any comments on Justice Douglas . Justice douglas is opinion in griswold, and just to take that i think he was significant on the court, but the griswold opinion, for reasons we will discuss, has been criticized for its use of the word penumbra. Ridiculed even. His opinion in griswold as saying something important about privacy rights at the heart of the limits and the bill of rights. I just add that. Julia is watching us. Hi, julia. Hi. Youve talked a little bit about griswolds foundational role in recognizing a right to privacy extending to include the right to marry people to access contraception and the right to abortion, and so on. Some including just a skin burke have said right to abortion might be more appropriately and secured securely located as a quality right rather than privacy right. The same could be set about contraception disproportionately affect women. Can you high but the size of that the legal implications on this line of cases and the intended policy issues that griswold were to be decided on a quality rather than a privacy basis . I know Justice Ginsburg has said that. I think, had it be done on equal protection, and then had for instance, the lawrence case, which will talk about later which was about sexual or invitation and sex followed it and equal protection, had the same sex marriage case had been done on equal protection she is not alone in thinking that that might have had a firmer foundation, and part of that is because the fight over how you look at a constitution, and find a non textual right, somewhere in the 14th amendment, that fight is still hot, but the question about equal protection is slightly less hot. I actually think that possibly, ginsburg is right. Or will were to have a former foundation, i also think that lawrence and the leader case on same sex marriage might have been seen as having the former foundation. The state wouldve had to articulate the interest against the unequal allocation of rights in those cases, and it wouldve been harder for the state to do so. We will go back to our narrative. Rachel, you said earlier that the earlier case quote, needed a rest. Thats why didnt go to court. We will learn a part of the story. We are going to listen to doctor boxed and his griswolds subject that Rosemary Stephens is her name, and she was part of this case, and she will explain how she came to be part of it. I was the witness against doctors. I got involved through the Yale Law School. It seemed at the time that it was very difficult to find a. Witnessed you needed a married woman who was plausible whose husband did not object and could stand up in court and give evidence. I was examined by dr. Buckskin i was given further advice we. Had gone directly to the clinic from the police station. Yes i did go to this Birth Control clinic. Yes i did see doctor boxed in. I did see mrs. Grizzled it. Was fairly straightforward. We accepted advice but we hadnt actually used it. The policeman sent us a way to come back tomorrow and say that this it also been used. So its proceeding step by step. Theres another aspect to this. Even though the folks in connecticut were planning for this did not pounced on that. Again from 1960 to cbs news report about a neighbor whose name is james moores got involved in this case and we will learn about his role and setting the wheels in motion. Im 100 percent against Birth Control because its a moral. Same is prostitution or abortion, or any of those other immoral things. Rock and roll candy new haven, the mayor of new haven through the motown, probably the side it town on sunday zippy through mcgahn. He realized it was hurting the children but when Birth Control can retain one of the mayor . He said thats not my department. Call the Police Department. The Police Department says call the prosecutor. Prosecutor says were not accepting the claim. Id finally go to the press and to the radio and everybody else. Was finally allowed to file a complaint with the chief of police in new haven. Just an ordinary citizen with five children who was never elected to office. I had to go to the chief of police and begged to file a complaint. What do you think of mr. Morrison and his role in all this. I always like to make sure that we dont judge people from the past by our same standards. He was not alone in this. The attorney for connecticut was making similar arguments about morality. I want to say its the anglican or the Episcopal Church only 30 years before i declared contraception okay but only for married couples. This was a very different time and things were changing drastically, as rachel pointed out, the invention of the pill. And everything nickel was going out through the 1960s. Everybody was frightening a frightening about the changes. Connecticut found itself in court over this case what happened . They lost. Planned parenthood lost in state courts. Before the Supreme Court in connecticut. The connecticut Supreme Court refer oozed to reconsider arguments. They said that the law was not unreasonable or arbitrary. It was a proper exercise of the state. And so planned parenthood appeals to the uses Supreme Court. Katie roar back was an important part of this process. Can you talk about what her role was . She was the main attorney in the courts in connecticut. She filed very forceful arguments. At that point introducing the idea that this was a violation of peoples rights of liberty and privacy. Previously, the arguments were more about this is a threat to peoples life if you dont let them use contraception but. But shes now introducing this idea that people have rights that may not be articulated in the constitution but they are important for personal freedom. Martha fein is a professor at emory law school. She she theres a terrific archive of her professional work at emory law. I had to put in a plug because its really wonderful resource. The New York Times 1963 had headline. To lose appeal on Birth Control the proponents of the repeal decided to try again legislatively. And went to the connecticut legislator, the house appealing the law in 1963. What happened in the senate . It loses in the senate. If you look at the shore history of it, it was a very Catholic Senate and they didnt believe in it. Thats a very interesting conversation by itself. One of things i noticed is when you look at the earlier case, one of Justice Douglas is statements is do not worry about the catholics on this. He says there are plenty of catholics and understand this is a private, moral thing, and they dont think the really need to have a law that goes into peoples bedrooms. The fact is if there was a dispute among catholics and it ended up showing up in the kinetic senate senate, which refused to pass the law. Others thought that the law should reflect a moral opinion. F jay darnell on twitter asks not so much about individual catholics but how did the Catholic Church respond . Today responded this in a very forward way . There was a debate. If you look at catholic literature at the time, you may see jon Courtney Murray. Some people may have heard him hes a very catholic fee all edition. Hes responsible for the vatican documents that said freedom for everyone is a good thing. He writes and douglas quotes him. So interesting he quotes this catholic guy. He quotes him in his dissent in tow and says Courtney Murray understands the difference between something that is privately a moral matter but should not be enforced by the law. This is not a law that anyone should support. Other catholics thought that the law should try to uphold a standard of morality, people are more likely to be promiscuous. I separated the idea babies in sacks and we should hold a line in connecticut. Next up is john in for wayne indiana. I my name is john martin. Full disclosure. I am a retired attorney i remember we learned and discussed about this case in constitutional law way back in 1976. I always remember about this case at the numbers and emanations. Pretty short opinion the came up with this right of privacy nowhere in the constitution. I dont think anybody should disagree it was it was a dumb law, never shouldve been passed. We look back today i can imagine any state would have such a law. But for nine unelected judges to decide through numbers in emanations that there is this right of privacy, which means that we have to declare this law unconstitutional. The real argument should been through the legislator. But they are the ones that should argue get rid of the law its still baffles me that nine of these elected judges can use these numbers and animations to find some right of privacy in the constitution. We let that stand as calm and go on a jeremy in washington. Good evening huge fan of the program so glad it cspan and the National Constitution brought it back for second season. My question relates to the pc you had froms were doctor boxed in talks about the economic inequality that affects the law had. You and your guest talk about how women who have means to see a private doctor would not buy this law it seems to me that the law would equally effect private and public clinics. Mueller with the basic of the statement was . I think doctor boxed and was referring to the also illegal practice of private physicians writing prescriptions for women or providing women with contraceptives under the table. That if you knew where to go and who to ask, as with any type of service that is either on an illicit market or is something that you would pay for that is not provided by law but is accessible through other means, you could find someone to help you if you had enough money and information. Gary is in new jersey i gary. I thank you for taking my call. I have a question the first to comment. As far as the catholic response in 1968, paul the sixth declared opposition to Birth Control. Thats a comment to follow up in the earlier question i came across this ruling when researching the ruling was in griswold, it surprise me that it only applied to married couples. And the Supreme Court did not have to make its a separate additional ruling seven years later, that made it applied to law old women, married and unmarried. It struck me as odd. My question is, was the Supreme Court much different seven years later . Does the makeup different . Why did they not make the original ruling brought to cover all women, not just married women in the first case . That is my question. Interestingly, the connecticut law applies to unmarried women and men as well. Planned parenthood decided to press the marital issue, because they thought it was a stronger argument. A stronger anchor for privacy right or a right to health, life and liberty. And at oral argument, the justices press emerson who argued for planned parenthood isnt just an equal protection problem. Youre only talking about married people. Should you also be talking about ordinary people . And the court decided not to take up the equal protection issue. They decided to take up the privacy issue for married persons. I think there are some thinking that it was a way to cabin the privacy right at that point in time. But the whole argument i think hints that it was always likely to give way on equal protection grounds across the marriage and unmarried line. If i could add to that. I think you pick your plaintiffs. At the time, the public was not going to be very enthusiastic about rights of contraception for single persons. The ideas that responsible married people wanted to determine the number of their children would get a lot of support. If they had gone and from the first with rights of single persons, heres the problem. It was very easy for the right of married people to trumps the states interest they said something about morality, preventing these couples from having adultery. The states didnt seem to be quite of strong. On the other hand, giving it a single persons, they might have made a case before the court, and indeed, the concurrent sees indicate the courts said listen, laws against premarital sex they are fine. If connecticut, and they said that in griswold. If connecticut had gone forward with singles person, connecticut wouldve said we do have an interest in dampening the willingness of single persons to have sex outside marriage. Jack, from iowa. Hi, jack. Family Planning Decisions tend to belong exclusively to women. Privacy apparently belongs majorly to women because of the griswold case. Does that not take husbands out of Family Planning decisions . Does that not mean that men are removed from a vital part of the womens life . There is so much there. Let me try to be brief. Because Birth Control has been made for women and not men, rights to use it have been a right that has been handed to women. When they try, and you can read from time to time, mother jones had an article a few years ago, and win in the New York Times not to long ago when i try to do Birth Control from men, sometimes men said they do not like the side effects. So they stop the trials and do not proceed with it. When women do not like the side effects, they keep going with the trials. They often put it out to the Public Market anyway. With regard to men, the question of mens rights did not really come up and contraception, because so much of this was about the pill when it was invented. Mens rights regarding families, they come up when parents are thinking about choosing schools for their kids. Custody or in the lawrence case, which we will discuss shortly about two men and rights to have a sexual relationship. But in terms of Family Planning, contraception and abortion, because of how it has been set up by the pharmaceutical companies and thereafter, because women are the ones who bear the children, it ends up being put as the womans right. Can i add that condoms, because of exactly what helen said, there has not been a male pill. Condoms are an effective way to control contraception. They were always available. They were always available to man. I think it also bears mentioning that many of the loss that police morals were attempts to police womens sexuality, and womens sexuality in family formations, which we will see another related issues. Extension of privacy rights to women and striking down laws that police that sexuality grew as well versus connecticut made its way to the Supreme Court and was heard on march 29th, 1965. Here is a look at the court in that time. The eisenhower point hes included earl warren, John Marshall harlan the second, William Brennan potter stewart. It was also hugo black. And a truman appointee, and a kennedy appointee and arthur goldberg. We are going to listen to Thomas Emersons predecessor. You mentioned earlier that a yale law professor by the name of Fowler Harper had initially headed up the legal team presenting the connecticuts case to the Supreme Court. He took sick and ultimately passed away. That is when Thomas Emerson came into the case. We have mr. Harper for you to listen to, talking about the arguments in this case. The current cases the case of doctor buxton and mrs. Griswold, the two were convicted as accessories for advocating contraceptive devices, not only involve due process laws advice people with respect to marriage and privacy he claims that this law prevented him from practicing his profession. Unless it takes his property without there was also involved in this case the problem of freedom of speech. Of the first amendment. It prohibits congress and the states are passing any law preventing freedom of speech. Certainly, one of the most imminent of life is the relation of a man and his wife in the privacy of their own home. When the long arm of the law reaches into the bedroom and prohibits a man and his wife from doing what they want to do and what medical advice suggested they do, it seems to me this is an invasion of the freedom of liberty of the citizens of this country. That is an outline of the thinking of the connecticut defendant in the case. There is something called irrational basis test that the court can apply to lots. Since connecticut and massachusetts are the only two states that have, this could they not have simply dealt with the case this way . Why did they go so far as to develop this Legal Framework . Earlier, rachel spoke of the States Police power. , the state has the right to make laws that govern Health Safety welfare. Health safety welfare morals. If a state makes these laws, ordinarily, a court takes a look at them and says, this is is it related to a state interest that is within Health Safety welfare . You know it . Its fine. It is when a law touches a constitutional right that the court says, now we will take a hard look at it. A little harder look today if it involves say a distinction between men and women. A really hard look if it has a race distinction, and a really hard look if it touches upon a fundamental right. Those fundamental rights, some of them are in the text of the bill of rights. Griswold said some of them arent, but they are still fundamental rights, and five out of nine members of court can tell you what they are. , this is why the plan parent heard of connecticut one of the fundamental right and it will take a hard look at the state funding. It was interesting listening to Valerie Harper in the 14th amendment, process laws freedoms to beach. How did it coalesce into the direction that it actually. Went i think the planned parenthood argued in all of these amendments had aspects of privacy they were fundamental to peoples lives and liberty. In their briefs and before the court, they said things like there are various amendments for the bill of rights. , the fourth the fifth the ninth, the 15th all of which appear in douglas is opinion. As having that protected the privacy of the home and the privacy of the marital relationship. That was it is distinct set, those amendments said something about marriage in holland that was different than other regulations that could pass the laugh out loud tests irrational basis review. At the state has any reason for passing a law, it will. Stand in this realm of private decisionmaking and personal relationships estates did not have a better. Reason it it occurred to me when i was watching this. I was questioning why, when it comes to both contraception as well as abortion, did no one say to me that this is a violation of the 14th amendment and a form of slavery by taking away the right of a woman to control her own body . This particular we entrusting to me because i gave birth for the first time in 1966. This is very meaningful to me. Anyone follow that legal argument . I have heard that argument may legally an ethics or philosophy and terminology. Ive heard some people refer to the United States as original sin of slavery the law regarding that in the law after recording jim crow and a lot today and racism and discrimination have really got their own niche. We do not tend to crush over between sexual expression or sexual embrace expression or slavery. It is a thing in itself but does not get used in other categories. We know the Thomas Emerson was part of the legal team. What happened to katie . She was part of the team but she did not argue the case. She was on the briefs. I think there was conflicting evidence about what happened in her role. From what i read, she remain part of the legal team working on the strategy, arriving in the brief and supporting emerson who deliver the opening. Argument and certainly the argument from connecticut that she was making and that followthrough to the supreme Supreme Court brief. For the extent we have evidence of a role that there were similar. Arguments for we go on to connecticut tonight. A word in 1965. Where was it in its long history of expansion of rights by the state . Towards the beginning, to the great surprise other republics who would upended warren if also got, harlan who was appointed by eisenhower. To the great surprise. Many people thought that it is opinion is that their non sexual rights in the constitution. I would not call it the heyday of what people commonly call the war in court. With republicans making a lot of decisions that now would be called liberal. This was towards the beginning of that. Period observations about the war in court. I think the commentators of the era were surprised by grizzled because the war in court, so many of its landmark cases had involve criminal justice, rights to free speech, poverty, entitlements by the state that hadnt been issues related to privacy or sexual expression. I think grizzled, in some ways, is the kind its in the debate that helen described between deferring to legislators or taking a harder look at legislation as judges when it touches on fundamental rights. That was there. But this, i think the grizzled stands apart from other notable warn cases that preceded it. Another tweet about the Catholic Church. The six decision on Birth Control there were noted exceptions there were a lot of whereas connecticut seem to outlaw even exceptions. Even today, there is the 50th anniversary and went out of 1968, that is happening right now. The exception was when it was used for the mothers health. When it was used to treat something, a Health Condition but it was not being used for contra contraception purposes. Connecticut did not say that theyre theres all this confusion. Comes amid up among justice in the states in it seems it nobody is getting in the way of using this contraception for disease. But there was no law that says it is okay. But its really as rachel indicated earlier, people doing what they could get away with until they eventually decided to push the law in the face of the authorities and get it decided. An interesting aspect of that just from a legal side the Supreme Court of connecticut had ruled that there was no exception for life for help, but the abortion law did allow abortion for the life of the pregnant woman. So the abortion law was more liberal, or less restrictive than the Birth Control law in 1965. Kinetic its arctic argument that we are an air in the era now there are audio recordings for all oral arguments after the remade the go to the National Oregon are. Guys joseph clark was the attorney arguing for the state of connecticut. Is there any biographical information on. And i think he was in the attorney generals office. Lets listen to how he fares in a. Mr. Clark, what youre touching on leads me to ask, what is the purpose of this laws legislation in connecticut. Your basic argument in your brief this is well within the socalled police power of the state of connecticut. What is its purpose . Your honor please, i think its purpose is to increase the two to increase the population in connecticut or degree . Case your honor i dont think that its to decrease the population in connecticut. I dont think we can make this claim. What is the claim . I think is to reduce the chances of amoralitys. I use the word immorality here and a broad sense. That is, in one way act as a deterrent to sexual intercourse outside of the marital relationship. On this record this involves only married women. So how can you make that argument . I think that your honor on this record, the statute is a valid exercise of police power. To what . Purpose your honor please. On this record there is a distinction. There has to be a distinction between Birth Control and the use of contraceptives. That is to say that all contraceptives in verve involve Birth Control. In order to practice socalled Birth Control, one does not have to use contraceptives. The state is able to take this position and take did the distinction. If it be said should marry people be allowed to use these devices . With this not is the state not going too far . I think the state can answer to that that there are other methods available to married. People owed came to law professors what are you hearing in those attorneys argument on behalf of the state . Law i hear that no one no justice and not even lawyers for connecticut believe that the state purposes that the law banning contraceptives for married, unmarried but for married in particular was any good at deterring people from extramarital sex. It seems that no one is buying that argument. This is what you really hear in the conversation. You say thats what the state laws meant to do. It isnt doing it. Clark argues later in his this is just a question of pure power does connecticut have the power tonight more legislation . Even if you dont believe that we are accomplishing the goals that we set out to as a state view, is it that we have the power to pass this law . What strikes me is that by the time he got to the Supreme Court, he was not able to articulate this. This is a question for me that goes to any lawyer coming before the Supreme Court should have this very ready to hand. He could have made the argument that, we do know, actually there is this law and economics literature of contra contraception and sexual expression. We do know that people think that when a risk isnt shirt against, there will be more of a risk. He could have said, i know it only a place to women, really, because theyre only making Birth Control for women. No, its not about trying to reduce Extramarital Affairs by both parties, but maybe it will help reduce them among women and maybe visavis the men they might be sleeping with and not their husbands. It is not something that people would love to hear today, but at least it would have had a little more rationality. Im struck by his inarticulate ness at the point of the Supreme Court. Joe on twitter says, joseph be lost cause clark is akin to the poor guy who tried to argue against gideon last week. He goes on to remind us and it is important. Justice stewart dissented in this case, and still maybe you can talk about Justice Stewart what conclusion he ended up coming to, even though he was really questioning the fundamentals of the law. He was, and yes Justice Potter stewart apparently had a strong preference for federalism and the power states. He enacted laws that are within health and safety welfare. Then more likely answer is that he believed and what rachel talked about as the leader argument of attorney clark who says, i think this will prevent a morality. He could not articulate how that Justice Stewart saw that it was very dangerous further down the road by justices sitting what he called a super legislature, making laws for connecticut when it really should be making for itself. Hes famous in this case for calling the law a communist. It is apparent and that line of questioning. He wrote and was concerned about harkening back to the days of locker. Season one of the landmark cases. And the connection between lochner is . Lochner is a case regulated the hours that new york bakers could work, as those of you faithful landmark cases viewers would know. Supreme court struck it down as an infringement on liberties of rights contract. It is really after lochner but the Court Refuses as we have been discussing, to use its power under the 14th, or any aspect of the constitution the economic regulations based on due process arguments about the wisdom ofs the state regulations. The post lochner era stewart is writing in griggs what about the courts concern that it is staying in a post lochner moment. If i could add to that. It is really interesting how when planned parenthood was arguing this case in the brief. Its that we are not going back to a time when the Supreme Court can strike on state laws regulating minimum wage dont worry. We all know that is that. But we think weve threaded the needle by saying states can improve the quality of life for people. We limit their hours. Up their wages. Pass laws. But they cannot restrain fundamental rights. So you see the brief trying to thread that needle around locker. Lochner was a very dirty word in those days. When stewart says we are going back to the lochner, that is very resounding. We have half an hour left to go on this edition of landmark cases. Were talking about griswold v. Connecticut, 1965. Planned parenthood case by which the 72 decision established the right to privacy. We will talk about the decisions and also about the framework that it established that has led to several decades of expanding privacy cases and rates for americans as a result of it. Lots more time for your phone calls. Phone numbers on the screen. You can send us a tweet as well. Im going to take a call and then we will go back to the discussion. Hi, mark. You are on the air. Yes, hello. I have a question. The conundrum i dont think many of us are familiar with the law or know too much about the conundrum. We vaguely know what the constitution means. Im just curious if you could explain explain more about the right to privacy under the rights to the country. Griswold v. Connecticut, if you look at it, even though a lot of us are not legal scholars, it seems that the court did the right thing. But they look at a personal persons right, the right to privacy, and they made a good judgment in my view. I believe many others my friends are colleagues believe they made the read decision as well. My question is, i know weve got different people with different and this religious freedom now with the rights that are kicking up, which i dont like that, because i think we can also have an individual not to push rights on others. Can you touch base on our rates that people should not be able to push we should not be able to push our rights on others. Can you touch base on that and explain it to us . Let me get into the decision. A lot of important topics for us. The day the decision was handed down in 1965, that is also the astronauts return to earth after the first spacewalk in the 1960s. It was a seven to two vote for the majority. There is the breakdown of the majority and the two dissenters, Justice Stewart and justice black. Heres an excerpt from mr. Douglas opinion. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives . The very ideas repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older then the bill of rights, older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. So, take us down to this legal reasoning. I will answer the penumbras question as well. But he says there is not an constitutional text that provides a constitutional or fundamental right to contraception. There is however its language in the 14th amendment that also applies to the states that protects excuse me, im getting ahead of myself. He says there is a right of privacy that it is part of, even if it is not explicit, in other amendments of the constitution. In the first he says it says free speech, but we say freedom of association, which is kind of a privacy thing. In the right not to have your home searched. You are right not to corner soldiers except in a particular circumstance. All of this speaks of a right of privacy. He even mentions, but does not rely heavily on the ninth amendment, which he says refers thanks to the state that are not taken by the federal government. He says the right of privacy is not in any of them. But if you look at these other things, these other elements of the bill of rights that have mentioned, there are penumbras and emanations. There are things without which the explicit rights are not really strong enough. Im going to say that the right to privacy is in that fuzzy penumbra animation thing coming out of some of the first or eighth amendment of the bill of rights. Can you define the word penumbra . Douglas was ridiculed for using the term penumbra. Hes a scholar. But the idea that there is a shadow cast by the amendments. It concludes privacy steak. Privacy interests that makes the first, third, fourth, fifth, ninth, 14th amendment did not make sense without some privacy background. So privacy in the shadows. Our guest last week has a book on the constitution. He described william oh douglas is arguments as strain. He went on to say that John Marshall harlan the second who is noted a constitutional conservative, he saw a more rational argument saying essentially that americas basic practices surrendered connecticut law unconstitutional. There are couple of things going on here he liked his privacy as much as the other person. Without adhering to the text of the constitution, the court becomes a day today constitutional convention. A super agency that sits in judgment over the legislator. Lets listen next to the current Justice Elena kagan and unsuccessful reagan nominee talk about their views agreeable case. What i objected to was the way in which this right of privacy was created. That was simply this. Justice douglas observed quite correctly that a number of provisions of the bill of rights protect aspects of privacy, and indeed they do and indeed they should. But he went on from there to say that since none of the provisions did that and since they had emanation by which of the comment buffer zones to protect a basic right, he would provide the path number which created a new pry of privacy that existed were no provision of the constitution. Applied i actually think that the grizzled and holding a grizzled does have a grounding in a constitutional text. The way most justices have talked about this is that the 14th amendment, the due process clause of the do 14th amendment guarantees liberty. When it guarantees such liberty, it means more than freedom from physical constraints. It also guarantees more than procedural protections there, there is some substantive protection of liberty it is incorporated within the 14th amendment of the constitution. So will move from those arguments that they were talking about to reaction round the country. First New York Times front page 1965. High court bars curbs on Birth Control. The Washington Post same day birth curb and with luck held legal. Now lets benson time agrees was legacy. First of all what show we know about grids walt, or dr. Buckskin or attorney emerson. What happened to their lives after this case . I do know that in the case of as well, she ended up in a dispute with planned parenthood and it was largely over where the clinic should be and could you live in a gait house and take care of her husband there. She did leave because of an internal dispute but was certainly a vocal disk supporter of womens rights and contraceptive through to the end of her life. She lived till 81. Eventually the state of connecticut put her in their hall of same for accomplishments of people in the state. Boxed in took a leave of absence from yale in 1965. He lived until 1969. Mr. Emerson candid continue teaching at Yale Law School died in 1991 and he never argued another case for the Supreme Court. We mentioned a few this a few times that this started a number of cases. The next winless eyes in stat versus which was 1972. Heres an excerpt from that majority. Opinion it is true the group as well the right of privacy in question inherit in the marital relationship. At the right of privacy needs anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion. Connecticut didnt want to go too far a put their foot in the pond. They hope the court would continue. What about this next court what was happening in society, or in the court that they moved on to a broader expansion of all people having rights . I would say that everything adds up to the sexual revolution, the idea of a single persons were likely to have non marital sexual relationships. The argument that wouldnt be better if these concert contraception and not get pregnant. They will go to Catholic University campuses in washington d. C. And hand out these things there to try and provoke occur controversy. A republic spectacles on the topic. There was the emergence of the sexual revolution among younger americans. There are cases of that have been heard and decided by the Supreme Court. 1970s free it was the framework for role forces weighed. An issue we are still debating in society today. Harry versus Population Services international, 1977, which found Birth Control was illegal for those at the age of 16. Lawrence versus texas was the assad of the ruling and and then 2015 the gay marriage. Case walk me through what is happening in the court and in society and how they continue to use this case as well to expand rights . It is well becomes important culturally and legally. Culturally, as helen mentioned, sexual morales are changing. Womens roles inside and outside marriage are changing . Technology around reproduction. There is an evolution since quiz walled in decisions row sexuality this reshaping the u. S. Story for families and for gender. As a matter of law, grizzled is interpreted in this line of cases as providing an anchor for some due process. There are rights that are fundamental to people did not explicitly enumerated in the constitution, but nonetheless states may not violate. Roe v. Wade, establishing a right to abortion. In the 14th amendment constitutional right to privacy. And then it is upheld and that it is repealed and planned parenthood versus casey. 14th amendment linked prophesy. Those linked back through to graze walled in the bay. Just a couple couple of quick points on that. When the court later talks about as well, today you wouldnt know it was the 14th amendment to process case. Number two, we went from the right of privacy inside the marriage to the right to make important decisions in your head. These include rights regarding sexual expressions finally. The sexual expression becomes more more separated from community. Its from the fact that is where children are created, from the fact that it does or does not take place in marriage. It gets separated from that and it becomes the right to express yourself, the right of identity. You see the due process morphing in lawrence which is assad any case and finally for right to establish your identity so it went a Long Distance from where it started and some marital bedroom and graceful. I would add, just as kennedys language could easily have been listed from griswold. Secret, and during, lifelong. As much as there is an individual component to the decision people make to marry khoury to have an abortion, or to seek a Birth Control, it is also about a community of people are seeking to have children, express love, and do it within the confines or the institution of marriage. The court itself has undergone enormous changes over the decades. Can you both talk about what happened in the court . When we were looking at brooke, rachel reminded me that kennedy was the justice who ended up being appointed at the time. Kennedy is the swing vote. The court seems to be four four on each side of these sexual protections protected in the constitutions. And the court could definitely shift for the next couple years. The right of contraception, the constitutional right of abortion were firmed, and not overturned. I think no matter what happens to the court in the near or distant future, i do not see griggs well going down. I see it spoken of as if it was the 14th amendment due process case. It is quite possible that row might be the part of the shift of the court and changing that. Any comments on the court change . I think that weve now seen decisions from the Current Court which has changed it suggests it is not clear what the future holds. That is certainly a big change since the court of 65, cases like womens health. Cases like hobby lobby, which i think we will talk about if we have time. Its just the courts is wrestling still with the issue of contraception. Do employees have to give contraception under the Affordable Care act . Can a state disseminated Reproductive Health infrastructure without any Health Reason and placing undue burdens on people in thats state for womens help . No. It is a complicated picture. I think even more fundamental is the court is still fighting over how do you find a non textual constitutional right . Some of the language that we saw in both the majority and the dissent in griswold is still banging around. All these years later, that fight, that played is as hot as it was. Then on facebook, we have someone who makes the tenth amendment argument that the court does not have the right to do. This its says the federal government needs to defer to the states for all things not numerator. I think that is almost a hint to the ninth amendment argument that the court should protect peoples interest, that people retain rights not explicitly mentioned in the constitution and arguments that Justice Goldman was trying to make in his concurrent and that argument also has not had much in the way of legs. I think it is because it suggests that states have all the power and courts have all the power. It is to get wrong with what our Balance Power should be between top hordes. Between state legislatures and federal governments. We have a separation of powers that keep anyone in check. That is an important part of our democracy. I agree with rachel. That argument has not had lakes. Here says far as i think the court at some point you might have a majority of justices that say, show me the history and tradition where this right is embraced by the country. And other justices will say, no, we can name broader evolving concepts of justice. But have never seen the tenth amendment argument get legs. Next is a color watching us from arlington, virginia. Hello. I was thinking back here on Justice Kennedy and the rise on justice thomas. In the subsidence due process approach due to rights privacy. Potentially, its hard to know. There are strong precedents now to untangle, to disregard all of them would be a huge change at this point. I dont think it is as easily undone as we suspect that it could be just by the retirement of warren justice. But would it shape future cases . The courts future interpret interpretation of the substance of due process . Undoubtedly. But revolutionize a doctrine, i think that would take more time. A good time to play or a last clip. The griswold decision is one of the most frequently asked about cases for potential Supreme Court justices when they are going through the Senate Confirmation process. Let us show you a clip from the most recent one neil gorsuch is was asked about it in his confirmation hearing. Griswold held that the 14th amendment due process liberty clause provided a right to married couples and to the use of contraceptive devices to privacy of their own home. They extended that to single persons. They have been settled for 50 years, nearly, in the case of griswold. There are reliance interests that are obvious with that have been reaffirmed many times. I do not see a realistic possibility that estate would pass a law attempting to undo that, or that a court of the United States would take such a challenge seriously. When you hear him frame it in that particularly way, what are you hearing . Im personally shocked he set it it was the descends that the majority did not. Second, he is dodging, i hate to use that blatant word, the question, do you think what the court did was correct . By stating what is probably undoubtedly correct, you will not see this kind of law again, so please dont worry about it. It will never come to me. What did you hear . The same. I also heard that there are obsessions in some ways with the holding of griswold as being either is their right to privacy are not . Is an enumerated, not a memory did . This is an interesting conversation about what is limiting about the decision in other ways. A right to privacy does not guarantee any individual the right to gain access to those services. Does not fund public or private clinics at a higher rate. It does not speak to equality in ways that we have discussed. I found his answer my reaction is, that is what i would expect the Supreme Court Justice Nominee to say. It leaves the door open for other cases to come, which are outside that very narrow framework. Paul is in right you are on the air. Welcome. I grew up in new haven and i remember at 16 years old, driving by that planned parenthood center. They had religious women. I dont know if they were nuns, but they were people performing a Prayer Service on their knees on the sidewalk. I wondered it was 24 hours a day for weeks. I wonder if that affected the case positively or negatively . From a historical perspective, when you do teach about this, what do you tell your students about the societal frameworks . I usually talk about the technology of the bill and what a gigantic cultural moment that was. I usually talk about khoury there were still lots of books, lots of laws on the books in those days, cohabitation, adultery, non marital sex. The pill came into a pretty conservative country on sex. And so i didnt know about the protesters are the prayers inside the clinic i. Usually talk more about the pill in the cultural time of the moment. I often teach gristle is part of a family law course and so i tell my students a little bit about the parenting cases, the sterilization cases the came before grids walled that helped convince the justices anger is well that there was a fundamental right to privacy. I do that because i think it gives them background for the ways in which we thought about parenting marital intimate relationships as something needed a closer look. That helps make sense of some of the cases to come. And one of the limits to that right . That there are state interests has helen mention fortification laws, adultery laws. Those are constitutional laws. Those laws still exist in states. They dont exist in the number that they had in the past, but states still have a considerable amount of leeway in protecting the Health Safety and morals of its population. For about a dozen state constitutions and many many statues it to speak expressly to the right of privacy. But it sounds like there will be continued challenges. In fact my students say when theyve taken grows well in the cases it came after it, i didnt know this is a constitutional law class. I thought it was a family law class. And i say, we are gonna fall of this fight over what is due process and the rights that the liberty class of the 14th amendment provide. Were gonna follow it right up to today. Grizzled is the first place where you get the interesting in the family law context. The great place to leave it. Thanks to both of you for being at the table. Thanks to the National Constitutional center. We have many more cases to cover. We have a booklet that we can put together that is the synopsis for each. Case you can finer a website at cspan. Org. Landmark leases. Thanks for being with us tonight and then at 9 35, brandenburg video high all, a case in which the Supreme Court overturned a hate speech conviction of Clarence Brandenburg and ohio ku klux klan leader. The overturned the decision to his right for freedom. Watch landmark cases on cspan three and anytime a cspan. Org. Margaret Sanger School is a nurse, became a Birth Control advocate after watching a woman die with a self induced abortion in 1912. In 1921, sanger founded the american Birth Control a, a predecessor to planned parenthood. Next on history bookshelf, jean baker talks about and reads from her biography of margarets sanger. She lived from 1879 to 1966. Baker is then interviewed by author christina page and response to audience questions at this event from 2011 recorded at the Tenement Museum in new york city. Good evening everybody thank you for your patience. In case you didnt know, we moved into the space last week, so were playing with some technical difficulties. Were glad youre all here. We hope your found a drink. I appreciate your patience. Of course, welcome to the Lower East Side Tenement Museum