tv Landmark Cases Griswold v. Connecticut CSPAN April 2, 2018 8:59pm-10:34pm EDT
c-span's washington journal, live every day with news and policy issues that impact you, coming up tuesday morning, foreign policy magazine's bethany alan discusses recent political, diplomatic and military developments in u.s.-china relations. then the carnegie endowments, yukon, and the eur asian groups talk about the future of china relations. watch live at 7:00 eastern tuesday morning, join the discussion. coming up tonight on c-span3, landmark cases is live with the 1965 case of griswold v. connecticut regarding the law criminalizing the use of
contraceptives. then american history in primetime features american artifacts on clifford berriman's political cartoons. after that, a discussion on the impact of the bible in america. and later a look at the museum exhibit on the vietnam war's tet offensive and the battle of way. all persons having business before the honorable, the supreme court of the united states are admonished to draw near and give their attention. >> landmark cases, c-span's special history series, produced in partnership with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> mr. chief justice and may it please the court -- >> quite often in many of our most decisions are ones that the court took quite unpopular.
>> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people. who help stick together because they believe in a rule of law. good evening. tonight's landmark cases, 1965's griswold versus connecticut with a 7-2 decision, the justices in this case established a constitutional right to privacy, and set in motion expansion of privacy rights that continue to today over the next several decades. to give you a sense of griswold's continuing importance in our society we put together a short video that is modern day references to the griswold case. let's watch. >> griswold v. connecticut, which recognized a right to privacy in the constitution. >> i agree with the griswold court's conclusion that marital privacy extends to contraception and the availability of that.
>> griswold versus connecticut. >> back in the 60s there was a case known as griswold versus connecticut. >> the holding in griswold -- >> let's talk a little bit about griswold. >> griswold talked about emnations and -- >> what is it about griswold versus connecticut that gives it its lasting importance? we'll learn about it and the history of this case and the interesting people involved are two guests at the table, helen alvare, a law professor at the george mason university's law school. her latest book is called "putting children's interests first." rachel rebouche, co-author of a book called "governance feminism, an introduction." let me ask the basic question, why is griswold so important? >> well, griswold was a landmark case when it was decided in '65,
five years after the birth control pill, you know, hit u.s. markets. it's a landmark case now because it set the path for cases deciding abortion rights, sexuality, sexual expression, same-sex marriage. it also, in 65 and now, a warning to states how to use the criminal justice system to police people's most intimate fundamental decisions. >> what are your thoughts on the landmark nature of this case? >> it's a declaration of the right of privacy, and all of the justices' discussion of, is it safe for judges to be finding rights 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? and it 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 conservative consensus about griswold? >> no. i would say there are many people who, citing a couple of the cases griswold cited, the right of parents deciding where to send kids to school, parents deciding about kids education, a lot of conservatives would say, yes, those rights exist. some would say it's always dangerous when five unelected justices or more discover a right that's not in the text of the constitution, how far will they go? >> is there a liberal point of view that encapsulates griswold? >> that griswold tied the right to birth control, the right to contraceptive use to a broader agenda for reproductive rights. and over the years, since 1965, that agenda has been more closely associated with the women's rights movement and with feminism and with women's
equality in education, politics and the workplace. is that a consensus? i'm not sure. but i think when you ask most who think of themselves as progressives, their take of why griswold is important, they would come up with some of those reasons. >> i mentioned there was an interesting cast of characters for this case, the namesake is estelle griswold. and helen, who was she? >> so, estelle griswold is a woman who has a very serious interest in the availability of contraception. she is married to someone in the state department. she ends up doing some international work in this area. and she decides that connecticut's law is old-fashioned and needs to be done away with. and she decides to form a clinic and deliberately violate the law and get before the court and get this connecticut statute looked at once for all. >> we're going to meet dr. c.
lee buxton. >> charles lee buxton was the chair of yale's ob/gyn department, the only medical school at the time that griswold was decided in the state. and he, with estelle griswold, came up with the strategy, the test case, that would become griswold versus connecticut to strike down the ban on contraceptive use for married people. he felt a personal responsibility to the patients he saw suffering with pregnancy complications who couldn't access legal contraceptives in the state. >> there's a female lawyer we're going to learn about named katy warbook. >> she is a real figure in history, the only woman in her class when she graduated from yale 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 didn't actually do the arguing in front of the
justices, but she took it up to the connecticut supreme court. she was later associated with defense of the black panthers. she felt very strongly about women's rights and about access to contraception among those. >> our last cast of characters before we get to the justices later on is thomas emmerson. >> emmerson argued the case for the griswold legal team before the supreme court. he was a yale law professor who took over from fowler harper, one of the original engineers of the test litigation when professor harper fell sick. >> you were both talking before the program started about the yale connection. so many aspects of this case seem to intersect with yale. is it just a cowin incidence? >> well, it was in connecticut. yale has been a premier law school for a time. and probably it was unafraid to do controversial things and this
was, indeed, controversial. you have griswold is married to someone from yale. you have dr. buxton who is on the faculty at yale. emmerson is on the faculty of yale. rorback had family who was at yale, also graduated from yale. so quite a few links. >> and also, apparently, estelle graze wou griswold made a myanmar tee kea. and they had cocktail parties. >> the power of social connections. >> this was referred to as a comstock law. can you give us a quick history of comstock laws? >> so the federal comstock law is passed in 1873. it's named after anthony comstock who is a postal worker, but also founds the new york society for the suppression of vice. at some point he famously brags
that he has confiscated 160,000 pounds of books, 95,000 articles and 60,000 implements of rubber for immoral purposes, not my quote, his. but he lobbies congress for the comstock law which makes it a crime to mail obscene materials, contraceptives being an obscene material, to mail them to mail information about them, to mail information about how to find out about how to find out about contraceptives. that's the comstock law. >> this is 1873 when the comstock laws were passed. we're talking about a case from 1960, '61. >> right. >> was it -- were comstock laws on the books at a lot of states? >> almost half the states, around 24 states, considering some states came in later so more than half at the time. i think connecticut's goes on
the books in about 1879. fascinatingly the state representative is p.t. barnum, yes, of barnum and bailey circus. that law stays on the books through to the time of this case. by the time this case comes around, really only connecticut and massachusetts have these laws on the books. connecticut's law, you know, the federal law was really concerned with mailing these. connecticut's law is concerned with the people who use them, including, you know, banning them in marriage, and concerned with people who aid and abet them, medical authorities. >> in about ten minutes we'll go to your phone calls and involve you in the discussion. we look forward to your comments by phone, 202-748-8900. 202-748-8901. send us a tweet, use #landmarkcases and there's a discussion on c-span's facebook page.
you can join the conversation there. so please do get involved in this discussion on griswold versus connecticut which established the right to privacy, not enumerated in the constitution. the actual -- 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 conception shall be fined not less than $50 or imprisoned not less than 60 days nor more than a year or be both fined and imprisoned." . in reality, by 1960, how often was this law enforced in connecticut? were people getting arrested for it? >> you know, it's hard to arrest someone for the use of contraceptives. so that's where the part of the statute that made it a crime to aid and abet was really important. by and large, people were not getting arrested. condoms, spermicide was
available in drugstores, available for disease prevention. as long as you sold a contraceptive device, or a contraceptive drug for other than contraceptive reasons it was legal. of course that didn't include the diaphragm or the pill. so those are still hard to come by. were people getting prosecuted? no. although an early case in 1940, a clinic was raided, the nurses and doctors were prosecuted, state versus nelson, and they went before the connecticut supreme court. they lost. there are no exceptions, not even for doctor's prescriptions. these doctors were told by a local attorney that writing prescriptions would not be against the law. the supreme court held that was not the case. >> but it was not referred to or taken up by the supreme court. >> no, it was not appealed to
the supreme court. >> there were federal efforts to overturn the comstock law, tileston versus ullman. what was happening with these cases? >> right, in the tileston case, it was a doctor trying to argue that the patient's life was at stake. the court said, i'm sorry, you don't have standing to assert your patient's interest. in 1961, they wanted a declaratory judgment this law could be enforced against them. the court said it's not right, there's not a controversy, nobody's been arrested, nobody's been convicted. it's just not ripe yet. if you look at poe versus ullman, the dissents from douglas and harmon, you have yourself griswold in miniature. if you can track so much of the language from the dissents in
that case that said it's ripe, here's how i would decide it if it came before me. >> we have a regular viewer of our series, who writes the penal aspects of the comstock laws are ironic. a stint in prison is another way to prevent contraception. >> clever. >> we get to 1961, here's a headline in the "new york times," connecticut clinic to test birth control laws. so there were a group of people in connecticut who decided they wanted to put this law to rest. and what was the role of planned parenthood organization in this? >> well, planned parenthood, led by estelle griswold, in poe, the '61 case, had recruit it had three patients that would become the petitioners led by dr. buxton, dr. buxton's patients. and she was instrumental in helping dr. buxton find those patients and decide on that
strategy. planned parenthood then was instrumental in figuring out that once poe -- once the supreme court dismissed the appeal from poe because of lack of prosecution, you know, no credible threat of prosecution, it was planned parenthood that was the engineer of a strategy to set up a clinic so that the director and the medical director could get arrested to test the connecticut law. >> so planned parenthood was operating around the state at this point? >> estelle griswold had explicitly set up a planned parenthood there. they had been in other areas of the state, in hartford, in new haven. >> they had, actually, a number of clinics that were operating throughout the state. in the case i mentioned, state versus nelson, they all closed after that case. and then they started setting up clinics for educational purposes and to lobby the legislature.
>> yes. >> but the new haven clinic at issue in griswold is the clinic that started prescribing contraceptives. before that other clinics in other places were just doing educational, other services that weren't banned by the law. although estelle griswold reportedly drove around the state with diaphragms in her car trunk, as well as planned parenthood was key in helping women get across state lines so they could seek contra septemberives legally in other jurisdictions. >> we've got film from 1962, and cbs network did a report on the connecticut birth control debate. what's great about this is you're going to see dr. lee buxton and estelle griswold in their own words describing how they put this test case together. >> dr. buxton, how did you become involved in this birth control case? >> well, i am interested in
taking care of patients in this institution. and i'm prevented from taking care of patients the way they should be taken care of by a law that exists. i just happen to believe something ought to be done about it. >> aren't people who want birth control information getting it in the state? >> if a woman can afford to go to a private doctor as a private patient and pay a fee, she can get contraceptive advice in connecticut. but if she hasn't the money to go to a private doctor, if she's a patient in our clinic here, for instance, she can't get contraceptive advice here because we're not allowed to have a family planning clinic. they're the ones that really need contraceptive advice from a socioeconomic as well as from a health point of view and they're being discriminated against because of economic status. >> since, as you said, that people who can afford to go to a
private physician, how many people would you say there are in the state of connecticut who are breaking the law every day? >> connecticut has one of the lowest birthrates of any state in the united states. you can't tell me that's because they're carrying out either puritan or catholic ideals. >> this is estelle griswold, the other defendant, as executive director of the new haven birth control clinic. >> i think it's very evident that the law is unenforceable. if you had a policeman under every bed in the state of connecticut, they still could not prove anything. we have -- we are continuing, maybe illegally, but we are continuing our program of education and referral. now, many, many women call in for information as to where they can get help. and for the past four years we have been referring women to the three out of state centers which just border the boundary of connecticut. and we have been subsidizing these centers financially for quite some time to help
particularly on these indigent cases we've had approximately 20,000 women go out in the last four years. >> so some interesting aspects of that. first of all, both of them making the economic argument. what's your reaction to that? >> a couple of things. over the years, especially poor minority women sometimes asked the question. when dr. buxton said these are the people that really need it, in the literature, even today in the contraception magazines, there's a question as to whether some poor minority feel that people really want them to have it. you have the controversy ore president nix season's national security memorandum, we have to contra september t contra septemb contra -- you have the debate in the 1990s, a longer acting contraception to poor women in
cities in exchange for women or gift cards. the economic argument makes a lot of sense to people. oh, my goodness, people can't afford x number of children. but it also has engendered a bit of a backlash. >> there is a complicated story, reproductive justice advocates have made it a center piece of their advocacy to talk about how certain family planning projects really targeted women of color. and that, you know, at the time that griswold is being decided, states are not just repealing their family plans, their contraceptives law, 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's really fascinating that one of the
understudied parts of griswold, is that the clinic saw itself as providing economic justice for its clients. it was a public clinic, serving low-income women who couldn't afford private doctors, who couldn't get in a car and drive to rhode island. and that -- the message about curtailing poverty and poverty's effects on reproductive choice is an important one that i think even with its darker side is something to think more about. >> i'm going to pause for a few minutes in our narrative and take some calls, first from peter in elizabethtown, pennsylvania, you're on the air. >> caller: thank you, ms. swain. and wonderful guests. i can't believe my good fortune getting to speak to you again. this case really fascinates me. for a long time when i heard it referred to i thought it was a case about reproductive choice, reproductive freedom, family planning, et cetera, but i've
since learned it centers on privacy. this really confounds me. here we are over 50 years later, and i'm like, where's my right to privacy? why hasn't this been extended? as you said, i live in pennsylvania, i'm pretty sure that if i grew certain plants in my home, especially cannabis for my own use, i could get in trouble. i'm pretty sure if i set up a wonderful device for distilling the essence off of fermented grain to make my own whiskey, i'm pretty sure i could get in big trouble for that. i'm not a smoker. as far as i know, i might get in trouble for producing tobacco for my own use without paying taxes and getting permits. so please, please, why has this -- why is griswold v. connecticut not been used to expand everyone's privacy rights and maybe put an end to our insane war on drugs?
>> thanks, peter. thanks for your call. >> i think one answer is that the right to privacy articulated in griswold, thing we'll talk about, the court confined that right to privacy to personal relationships in many ways. to a sphere of marriage, parenting, sexual expression. and here i'm talking about a trajectory from 1965 to 2018. but cabined off the same types of inquiry for economic affairs and markets. and a lot of what you're describing the court has said implicates business, business affairs, states regulation of markets. you may not be satisfied with this answer. but the court has made that distinction. so, you know, privacy has its limits, which i think we'll discuss. >> josh is up next in algona,
iowa. hi, josh. >> caller: how consequential of a justice was william o. douglas, not just in this case, but in the overall history of the court? >> thank you. >> i have to say, 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, and indicated very much an opinion on behalf of living constitutionalism. when i went back and reread his dissent in poe versus ullman, the case before griswold, reread his opinion in griswold, i was struck by how many of the phrases about a living constitution are still in contest today. so i think a lot of his importance deals with it. i would defer to others as to later cases that he was a part of because i don't know them quite as well. >> do you have any comments on justice douglas? >> you know, justice douglas's opinion in griswold, just to take that, i think he was
significant on the court. but the griswold opinion for reasons we'll discuss has been criticized for its use of the word ""penumbrae," ridiculed even. it's saying something about core privacy rights in the heart of the amendments. >> next up is julia watching us in palo alto. >> caller: you've talked about griswold's foundational role in right to privacy, the right of unmarried people to access contraception and the right to abortion and so on, some including famously justice ginsburg have opined the right to an abortion might be more appropriately and securely located in an equality right rather than a privacy right, and
the same could be said of contraception in griswold since the ability to decide when and if to become pregnant affects women. can you hypothesize on this line of cases and on the attendant policy issues if griswold were decided on equality rather than privacy basis? >> i know justice ginsburg has said that. had it been done on equal protection and then had, for instance, the lawrence case, which we'll talk about later, which was about sexual orientation and sex followed it in equal protection, had the same sex marriage case been done on equal protection, i think, you know, she is not alone in thinking it 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 fourteenth amendment, that
fight is so hot. but the question about equal protection is slightly less hot. so i actually think that possibly justice ginsburg is right. and lawrence on the later case in same sex marriage might have been seen to have a firmer foundation. the state would have had to articulate its interests against the unequal allocation of rights in those cases and it would have been harder for, i think, the state to do so. >> we're going to go back to our narrative. rachel rebouche, you said earlier the case, the earlier case, poe needed an arrest. that's why it didn't go to the court. we're going to learn that part of the story. we're going to listen to dr. buxton and estelle griswold's subject that rose mary stevens is her name, and she was part of this case, and she's going to explain how she came to be part of it. >> i was the witness against the doctor, dr. lee buxton.
i got involved nthrough the yal law school. it seemed at the time that it was very difficult to find a witness. you needed a married woman who was plausible, whose husband did not object, ask could stand up in court and give evidence. i was examined by dr. buxton. i was given further advice. robert and i had gone directly from the clinic to the police station. they wanted to know just about what had happened. in other words, yes, i did go to this birth control clinic. yes, i did see dr. buxton. yes, he did give me advice. yes, i did see mrs. griswold. very straightforward. we'd accepted advice, but we hadn't actually used it. so the policeman with sort of sent us away to come back tomorrow and say that this had also been used.
>> so its proceeding step by step by step. there's another aspect to this, even though the folks in connecticut were planning for this, didn't count upon, and we're going to meet next from, again, this 1962 cbs news report about a neighbor whose name is james morris who got involved in this case and we'll learn about his role in setting the wheels in motion. >> well, i'm 100% against first control because it's immoral. it's the same as prostitution, or abortion, or in any other of those immoral things. when rock and role came to new haven, the mayor of new haven threw him out of town, and probably every city this side of the mississippi threw him out of town. he was against it. he realized it was hurting the children. when birth control came to the town, what did the mayor do? he says, that's not my department. call the police department.
the police department says, well, call the -- i'll call the prosecutor. the prosecutor says we're not accepting your complaint. that's up to the police department. finally after i had to go to the press and to the radio, and everybody else, i finally was allowed to file a complaint with the chief of police in new haven, just an ordinary citizen with five children whose never elected to office, i had to go to the chief of police and beg to file a complaint. >> so what do you both think of mr. morris and his role in all of this? >> i always like to make sure that, you know, we don't judge people from the past by our same standards. and he was not alone in this. i mean, the attorney for connecticut was making similar arguments, that straight out about morality. i think the -- i want to say it's the anglican or episcopal church in 1930, only 30 years before, had declared contraception okay and only for married couples. this was a very different time,
and things were changing drastically. as rachel points out, the invention of the pill, and all else that was going on in the 1960s. and a lot of people were very frightened about all the changes. >> connecticut found itself in court over this case. what happened? >> well, they lost. >> planned parenthood? >> planned parenthood lost before -- in the state court, before the supreme court in connecticut. and the connecticut supreme court refused to reconsider arguments that they had decided in tileston and poe, saying the law was not unreasonable, not arbitrary, it was a proper exercise of the state's police powers. and so planned parenthood appeals to the u.s. supreme court, which is ready to hear the case. >> katie rorback who we saw earlier was important to this part of the process.
what was her role? >> well, 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 the people's right of liberty and privacy. previously in the tileston and poe case, the arguments were more about this is a threat to people's life if you don't let them use contraception. but she's now introducing this idea that people have rights that may not be explicitly articulated in the constitution, but they're very important for personal freedom. >> in the law, martha fineman is a professor at the law school, bequeathed her files and papers, rorback's files and papers, and there's a terrific archive of her profession work there. i had to put in that plug because it's really a wonderful resource. >> so "the new york times," january 18th, 1963 had the headline, two lose appeal on birth control.
but the proponents of the repeal of the law decided to try again legislatively. and it went to the connecticut legislature, the house passed a bill repealing the law in 1963. but what happened in the senate? >> it loses in the senate. if you actually look at the short histories of it it says it was a very catholic senate and they didn't believe in it. that's a very interesting conversation by itself. one of the things i noticed is when you look at poe versus ullman, that earlier case, one of justice douglas's statements in there, he says don't worry about the catholics on this. he says there's plenty of catholics that understand this is a private moral thing and they don't really think you need to have a law that goes into people's bedrooms. the fact is, there was a dispute among catholics and it ended up showing up in the connecticut senate which refuses to pass the law. some thought, whatever we think about it morally, you don't have to make it illegal. others thought, no, the law should reflect a moral opinion
on this. >> so f.j. darnel on twitter asks not so much about individual catholics, but how did the catholic church respond? were they involved in this? >> there was a debate. if you look at catholic literature of the time, you see that john courtney murray, some may have heard of him. he's a famous catholic th theologian. he says religious freedom for everyone is a good thing. he writes, and douglas quotes him. so interesting, he quotes this catholic guy in his dissent in poe. and says courtney murray understands the difference between something that is privately a moral matter, but shouldn't be enforced by the law. this is not a law that anyone should support. other catholics thought that the law should try and uphold a certain standard of morality. people are more likely to be
promise c promiscuous. >> caller: hi, yeah, my name is john martin. full disclosure, i am a retired attorney. i remember we discussed and learned about this case in constitutional law way back in 1976. and what i always remember about this case the emnations. it's a pretty short opinion, they came up with this right of privacy. nowhere in the constitution. i don't think anybody can disagree it was a dumb law that never should have been passed. i mean, we look back today, i can't imagine any state would have such a law. but for nine unelected judges to decide through penumbraes and emanations, right of privacy.
the real argument should have been to the legislature. they're the ones that should have argued get rid of this law. it still baffles me that nine unelected judges can use penumbraes to find right of privacy. >> we'll let that stand as a comment. go to jeremy in washington, d.c. >> caller: good evening, huge fan of the program, and so glad that c-span and the national constitution brought it back for a second season. my question relates to the piece that you had from cbs where dr. buxton talked about the economic unequality effect the law had. you and your guests had talked about how, you know, women who had means to see a private doctor wouldn't be affected by this law. but it seems to me that the law would equally apply to private as well as a public clinic is there. i'm just wondering what the basis of dr. buxton's statement
there was. >> i think dr. buxton 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 a -- you know, an illicit market, or is something that you would pay for that's 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. hi, gary. >> caller: hi, thank you for taking my call. i have a question -- first a comment. as far as the catholic response in 1968 paul -- pope paul vi
declared opposition to birth control in his paper. that's just a comment to follow up on an earlier question. my question is, i came across this ruling when researching the history of the discovery of the birth control pill. and the ruling was, in griswold, was that it surprised me that it only applied to married couples. and then the supreme court then had to make a separate additional ruling seven years later that made it apply to all women, married and unmarried. and it struck me as odd. and my question is, was the supreme court much different seven years later? was the makeup different? why didn't they make the original ruling broad to cover all women, not just married women in the first case? that's my question. >> interestingly, the connecticut law applies to unmarried women and men as well, and 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 or life and liberty. and at oral argument the justices pressed emmerson, who argued for planned parenthood, isn't this an equal protection problem? you're only talking about married people. shouldn't you also be talked about unmarried people? 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's some thinking that it was a way to cabin the privacy right at that point in time. but the oral argument, i think, hints that it was always likely to give way on equal protection grounds across the marriage, unmarried line. >> if i could add to that, i think you pick your plaintiffs, right? and at the time the public was not going to be very enthusiastic about rights of
contraception for -- the idea that married people wanted to determine the number and spacing of their children was given a lot of support. if they had gone in from the first with rights of single person, here's the problem, it was very easy for the right of married people to trump the state's interest in what, right, the state said something about morality. the state's interest didn't seem quite as strong. on the other hand, if the state is prohibiting distribution to single persons, then they might have made a case before the court. and, indeed, the concurrence indicates the court said, listen, law is against premarital sex, they're fine, and if connecticut -- they said that griswold. the connecticut had gone forward with the rights of single persons, connecticut might have said we do have an interest in dampening the willingness of single persons to have sex outside of marriage. >> jack is in davenport, iowa.
>> caller: family planning decisions appeared to belong exclusively to women. privacy apparently belongs mainly to women because of this griswold cases. doesn't that take husbands out of family planning decisions, and doesn't that mean that men are removed from a vital part of the marriage life? >> there's so much there. let me try to be brief. because birth control has been made for women and not men, rights to use it is, you know, a right that's handed to women. when they try, and you can read from time to time, mother jones had an article a few years ago, one in the "new york times" not too long ago when they try to do birth control for men, men don't like the side effects. so they stop the trials or don't proceed with it. when women don't like the side effects, they keep going with the trials, often put it out in the public market anyway. with regard to men, the question
of men's rights didn't really come up in contraception because so much of this was about the pill when it was invented. men's rights, vis-a-vis family, they come up when parents are thinking about choosing schools for their kids or custody, or in the lawrence case, which we'll discuss shortly, two men and the rights to have a sexual relationship. in terms of family planning, contraception and abortion, because of how it's been set up by the pharmaceutical companies and thereafter because women are the ones who bear children, it ends up being put as a women's right. >> could i add that condoms which because of -- exactly what helen said, there hasn't been a male pill established. condoms are a way for men to control contraception. we're always available in connecticut, and we're always available to men.
it also bears mentioning that many of the laws that police morals were attempts to policewomen's sexuality. and women's role -- women's sexuality in family formation, legitimacy and other related issues. extension of privacy rights to women and striking down laws that policed that sexuality, one consequence as well. >> griswold versus connecticut made its way to the supreme court and was heard in oral argument on march 29th, 1965. here's a look at the court in that time. the ease enhower appointees included warren, marshall, bren nan and stewart. there were still roosevelt appointees too, hugo black, and we'll talk about his dissent later on. a truman appointee tom clark. and white and goldberg. so we're going to listen to
thomas emmerson's predecessor. you mentioned earlier a yale law professor by the name of fowler harper initially headed up the legal team to present connecticut's case to the supreme court. he took sick and ultimately passed away, and that's when thomas emmerson came into the case. but we have fowler harper for you to listen to talking about the arguments in this case. >> the current cases, a case of dr. buxton and mrs. griswold, the two just have been convicted as accessories for prescribing and abdicating a contraceptive advice, their right to advise people with respect to privacy. and dr. buxton in his profession, because he claims this law prevents him from practicing his profession according to scientific
principles and his own conscience. thus, is makes the property due process of law. there's also involved in this case a problem of freedom of speech under the first amendment, which prohibits -- first and 14th. one of the most sacred relationships in life is the relationship 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 prevents a man and his wife doing what they want to do and what medical advice suggests they do, this is a merciless invasion of the freedom and liberty of citizens of this country. >> that's an outline of the thinking of the connecticut defendants in this case. there's a rational case that applies to law.
since connecticut and massachusetts were the only two states that had this, couldn't they have dealt with with the case this way? why did they go so far to develop this legal framework? >> earlier rachel spoke of the state's police power. the state has the right to make laws that govern health, safety, welfare. and they used to also say morals, health, safety, welfare, morals. if a state makes these laws, ordinarily, a court takes a look at them and says, is this law rational? is it related to a state interest that's within health, safety, welfare? you know what, it's fine. it's when a law touches a constitutional right that a court says now we're going to take a harder 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 rights. the fundamental rights are in
the text of bill of rights, griswold says some of them aren't, but they're still fundamental rights. and five out of nine members of the court can tell you what they are. and so this is what the planned parenthood of connecticut wanted is, let's have the court say it's a fundamental right and then they'll take a hard look at the states limiting it. >> it was interesting listening to fowler harper talking about the fourteenth amendment, first amendment, how did it coalesce in the direction it actually went? >> i think planned parenthood argued all those amendments had aspects of privacy that were fundamental to people's life and liberty. so in their briefs and before the court, they said things like there are various amendments to the bill of rights, the first, the third, the fourth, the fifth, the ninth, the fourteenth, all of which appear in douglas's opinion as having penumbraes that protected the
privacy of the home and the privacy of the marital relationship, and that that was a distinct set of -- those amendments said something about marriage and the home that was different than other regulations, that could pass the laugh out loud tests, a rational basis review, in which the state has any reason for passing the law, it will stand. but in this realm of private decision-making, in these personal relationships, the state has to have a better reason. >> joan is watching us in fort meyers, florida, you're on. >> caller: okay. it occurred to me when i was watching this, and i was questioning why, when it comes to both contraception as well as abortion, that no one say this seems to me to be a violation of the fourteenth amendment, a form of taking a right of a woman to control her own body. particular interest to me because i gave birth for the
first time in 1966. this period is very meaningful to me. >> anyone follow that legal argument in presenting this case? >> i have heard that argument made, and i've heard it made legally and heard it made in ethics or philosophy terminology. you know, we're -- i've heard some people refer to the united states as knowledge sin as slavery. slavery and the law regarding that, and the law after regarding jim crow, and the law today on racism, nondiscrimination, have really got their own niche. we don't tend to cross over between sexual expression interests, or whether it's contraception and abortion and slavery. it tends to be, there's a legal expression, a thing in itself, that does not get used in other categories. >> so we know that thomas emmerson was part of the legal team. what happened to katy rorback? was she part of the team? >> she was part of the team but she didn't argue the case. she was on the briefs.
and i think there was conflicting evidence about what happened in her role. but from what i've read, she remained part of the legal team, working on the strategy, writing the brief, and supporting emmerson supporting emerson. >> the argument from connecticut that she was making from the connecticut court, what followed through the supreme court brief. to the extent we have evidence of her role. there seems to be similar arguments. >> a word or two of 1965, where was it in its long history of expansion of rights by the state? >> towards the beginning. >> to the great surprise of the republican who had appointed warren. you got harlen who was appointed by eisenhower and to the great surprise and many opinions that
there are no contextual rights. this was towards the beginning of that period. >> what are your operation that people should know? >> i think that commentator of the era were surprised by griswald because so many of its landmark cases involved criminal justice and have not been issues related to marital privacy or sexual expression or the like. griswold in some way of a kind that helen describes the difference between legislatures or taking a harder look at legislation as judges when it touches on fundamental rights.
that was there. griswold stands apart of other notable cases that proceeded it. >> another tweet. the pope calls the decision on birth control. there were no exceptionoted exc that were allowed. >> all kinds of conferences on it. the exception was when it was being used for the mother's health or used to treat something, a health condition but it is not used for contraceptive purposes. connecticut did not say that but there were all these confusions and it comes up among the justice and both the statement and the federal courts, it seems that nobody was getting away from using contraceptions of
disease but there is no law that says it was okay. it was people doing what they could get away with until they decide to push this law in the face of authorities to get it decided. >> an interesting aspect of that as well just from the legal side, so connecticut, the supreme court of connecticut have ruled that there is no exception for life, for health. the abortion law at the time did alive abortion for the life of the pregnant women. it was more liberal or less restrictive of birth control in 1965. >> we are in the air now where there are audio recordings of all of the oral arguments. after they are made, they go to the national archives where we are able to find it for you. joseph b. clark was the attorney argued for the state of
connecticut. any biograph on him? >> let's listen to him. >> mr. clark, what you are touching on now leads me to ask: what's the purpose of this legislation in connecticut and so far of this argue, is this as well within the so-called police power of the state of connecticut. what is the purpose? >> to increase the population of connecticut. >> increase or decrease. >> i am not told to increase the population of connecticut. i don't think we could make this place. >> i think it is to reduce the chances of immorality.
i use the word immoral at the in a broad sense. that is in one way to act as a deterrent, sexual intercourse, outside of marital relationship. >> the total argument that this involves only marriage women. >> that's correct. >> how can you make that argument? >> i think on this record, the statue is a valid exercise power. >> well, for what purpose? >> your honor, on this purpose, on this record that there is a distinction and there has to be a distinction between birth control and the use of contraceptives. that's to say all kinds of contraceptives control birth control but in order to practice birth control, one does not have
to use contraceptives. and the state is able to take this position and distinctions. if it be said, well, should married people and going too far. there are other methods available to married people. >> okay, my two law professors, what are you hearing in the attorneys' argument? >> i hear that no one, no justice and not even lawyers for connecticut believes the state's purpose that connecticut put forth. the law banning contraceptives, was any good at deterring people from extramarital sex. it seems that no one is buying that argument. that's what you really hear in the conversation, you say that's what the state law is meant to
do, it is not doing it. clark argues later in his o ordina ordina ordinate, does connecticut have the power? even if you don't believe we are accomplishing the goals that we set out to as a state. 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 you know we do know actually there is this law economic legislature contraceptions and sexual expressions. we do know that people think that when a risk is ensured against, they'll do more of the risk. he could have said yeah, i know it applies to women because they only make birth control for
women. it is not trying to reduce extramarital affairs by both parties but maybe it will help reduce among women. i mean it is not something that people would love to hear today but at least it would have more morality on it. i am struck of his meticulous at the point of supreme court. >> so joe paulson says joseph b. "lost cause." >> maybe you can talk about what conclusion he ended upcoming to in this case even though he's questioning the fundamentals of the law. >> he was, justice stuart, apparently had a strong preference for tfederalism, the
power of state and human act laws and health and safety welfare. the more likely answer is that he believed in what rachel talked about as the later argument of attorney clark who says i think this will prevent immorality. he could not articulate how. justice stuart saw it was dangerous down the road, what he's calling a super legislation making it laws to connecticut when it is for itself. >> justice stuart is famous for this case for calling it law. he wrote and was concerned about lockner. >> yes, season one. and the connection between
lockner is? >> lockner is the case where new york has regulated the hours that new yorkers could work. as those of you faithful landmark case viewers would know, the supreme court struck it down as the infringement of liberty, the right to contract. it is after lockner, the court refuses to use its power under the 14th to strike down or any aspect, economic relations based on due process arguments about the wisdom of state regulation. and, the post lockner error, stuart is writing about griswold of the court's concerns that's staying in oppose of lockner's moment. >> if i can add to that. it was interesting of when planned parenthood argued about
this case. we are not going back to a time where the supreme court can struck down minimum wage. we think we threaded the needle by saying states can improve the quality of life for people. limit their hours. up their wages and pass laws. they cannot restrain fundamental rights. lockner was a dirty word in those days. when stuart says we are going back to lockner, that's resounding. >> we have half an hour left to go. we are talking about griswold verses connecticut of 1965. our last half hour, we are going to talk about the decision and also about the framework that establishes as led to several decades o f expanding privacy cases. the phone number is on the
screen and you can send us a tweet as well. actually, i am going to take a call, mark is on sandford, hi mark, you have within waiting. >> caller: hello, i had a question. not many of us are familiar with the law. we vague lily know what the constitution means. i am curious if you can explain a little bit more of the right to privacy and all the rights to come under the bill of rights and then also i want to mention, griswold v. connecticut, that case, it seems that the court did the right thing. that they looked at a personal person's rights, the right to privacy, they made it a good judgment -- in my view and i believe many others and my
friends and colleagues believed they made the right decision, too. i know we got different people of different preferences and different religious freedom now. i don't like that because we should have an individual freedom. i wonder if you can touch base on our rights that people should not be able to push even though it is out right. we should not push to others. can you touch base on that and explain it to us. >> okay, let me get into the decision, he really teased up on those questions and a lot of important topics. june 7, 1965, that was the day the questions were handed down. >> that was our astronaut returned to earth for the first time in the 1960s. it was a 7-2 vote for the majority. there is the break down of the majority and the two justices,
justi justi justi justice stewart and justice black. >> 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 the legal reasoning here. >> so this will answer the question as well. what he says is for there is in the constitution of a text that provides the constitutional or fundamental right to contraception. there is, however, it is language of the 14th amendment and applies to the state th that -- i am getting ahead of myself. no, he did not put it in the
14th amendment. he says there is a great privacy that's hard and even if it is no t explicit than other amendments of the constitution. in the first, he says free speech. we say there is freedom of association which was a kind of a privacy thing. in the right to not have your home searched or your right not to quarter soldiers except under particular circumstances. all of these speak of a right of privacy. the 9th amendment reserves thanks to the states that are not taken by the federal government. you know the right of privacy is not in any of them. if you look at these other things, these other elements of the bill of rights that i mentioned, there are things without which the explicit rights are not really strong enough. and, i am going to say that the right of privacy is in that
fuzziness coming out. >> would you be kind enough to define the word? >> douglas was ridiculed for using term a lot, a latin scholar. the idea that there is a shadow cast the amendment, excludes privacy states and privacy interests that make the first, third or fifth or fourteen amendment did not make sense with some privacy background. >> so our guest last week that had a book on "constitution," he described william douglas' argument as strange. he went onto say john marshal
harlen the second who was noted, constitutional conservative made a more, he saw a rational argument saying that america's basic practices rendered connecticut's odd ball law unconstitution. >> one is when we talked about lockner, it seems that douglas did not want to find a right in the 14th amendment for the liberty that people have that could cast down and strike down state laws. why? that's what lockner did. one, probably trying to avoid putting in the 14th amendment like harlen did because he wanted to avoid lockner. number two, he may have been afraid of going too far. he wanted to start with things that were definitely in the constitution, there is a firm
tie. harlen makes this argument relies on well-loved cases. of course, parents have a right to decide their children can be taught. of course, parents can decide their children can go to religious schools. in the past, this course has found that people have rights that's not in the texts of the constitution. we did it through the 14th, those case are popular. i don't see why we cannot put it right alongside them. >> let me go onto justice black. here is a bit of a language of justice black and remember here as uh-you are reading this. justice black was called the originalist before judge scalia got to the court. "there are is no single one of the graphic and eloquent
strictures and criticism fired at the policy of this connecticut law either by the courts opinion or by those of con curing brethren." what is he saying? >> their originals is positioned as you described. there is no fundamental rights of privacy because the constitution only speaks -- so justice douglas, his argument is strange because how can you show that a law on married persons access in use of contraceptives help protects and uphold and secure the third amendment or the 5th amendment, there is a gap there. the gap that we are trying to
fill, that does not make sense in light of a textual approach to the constitution. so, you know he's also famous for saying he liked his privacy as much as the next one. but that without hearing to the text of the constitution, the court becomes a day-to-day constitutional convention. a super agency that sits in judgment over the legislature. as we heard the griswold decision relied on several constitutional amendments. let's listen to elena kagan. >> well, i object the two in the way this right of privacy was created and that was simply this. justice douglas observed directly of a number of provisions of the bill of rights protect aspects of privacies and
indeed they do and indeed they should. but, he went on from there to say that since the number of provision did die and since they did have -- he would find a number which created a new right of privacy that existed when no provision of the constitution applied. >> i actually think that the griswold and that the holding of griswold does have grounding in the constitutional text. the way most justices thought about this is the 14th amendment, the due process, and guarantees liberty. when it guarantees such liberty, it means more than freedom of physical constraints, it
guarantees more than procedural protection, and there is protection of liberty that's incorporated of the 14th amendment of the constitution. and, so we'll move from those arguments since we have been talking about the reaction around the country and new york times front page. the 1965 high court bars curbs on birth control. the washington post, same day, "birth curb in wedlock held legal." >> now, let's spend some time on griswold's legacy. should we know about griswold or attorney emerson. what happened to their lives after this case? >> i do know in the case of griswold, she ended up on a dispute of planned parenthood and it was largely where the clinic should be. she did leave because of internal disputes.
but, certainly a local supporter of women's rights. i think she died in 1981. she lived a long 81 years. >> eventually, the state of connecticut put her in their hall-of-fame for accomplishments of people in the state. buckston took a leave of absence and mr. emerson continued to teach at yale lawsuit and died in 1991 and never argued a supreme court case court. >> we mentioned this started in a number of cases where the next one was 1972. here is an exert from that majority opinion. it is true that griswold, the right of privacy in question inherited the marital relationship.
if the right of privacy means anything, it is the right of individual, married or single to be free from unwarranted government intrusion." >> connecticut did not want to go too far. what about the next case. what was happening in society or the court that they moved onto the broader expansion to all people having contraceptives. >> i would say everything that adds up to the word sexual revolution and the idea that single persons were likely to have non-marital sexual relationship and the argument is would it be better if they use contraceptions and you can get pregnant. bill would go to washington, d.c. and he would hand it out there and trying to provoke a controversy. there were public and pespectacs on the topic.
>> here is a longer tale of griswold that have been heard and decided by the supreme court. in 1973, it was the framework for roe v. wade which we are still deciding today and carcare carecarey carecarey carecarey carey verses population service in 1977. walk me through what's happening in the court and society and how they continue to use this case griswold to expand rights. >> griswold becomes important culturally. sexual morals are changing and women's roles inside and outside marriage changing.
technology around reproduction changing. there is an evolution since griswold in reproduction and decisions around sexuality that are reshaping the u.s. story for family and for gender. as a matter of law, griswold is interpreted in this line of cases as providing an anchor. nonetheless, states may not violate. roe v. wade, and then upheld for the trimester system is repealed and 14th amendment, those linked
back to griswold and the debate and majority that we were having. >> a couple of quick points on that. one when the court talks about griswold, you would not know it was the 14th amendment. number two, we went from a right of privacy inside a marriage, inside a matt pratrital bedroom and finally, sexual expression becomes more and more separated from community and from the fact that it is where children are created or the fact that it may be that, it does or does not take place in marriage. it gets separated from that and it becomes the right to express yourself or identity. you see this sexual expression morphing in the abortion decision to the right to establish your identities.
it went a long distance from where it started inside the marital bedroom in griswold. >> it could easily be lifted from griswold and sacred and enduring and lifelong. as much as decisions people make and expressing themselves sexually to have an abortion or seek out birth control. it is also about a community of people who are seeking to his children and a community of people who are seeking the express love and do it within the institution of marriage. >> the court itself is under going an enormous changes during those decades and we both talked about what happened in the court and how it changed. >> well, when we were looking at borick, rachel reminded me that kennedy was the justice who ended up being appointed at that time. kennedy is swing vote and the court seems to be 4-4 on either
side of is sexual protection protected in the constitution? and the court could definitely shift within the next couple of years. the right of contraception, the constitutional right of abortion were affirmed and not over turned. i think no matter what happens to the court in the new or distant future, i don't see griswold going down. i see it spoken on if it was 14th amendment or due process case. it is possible that roe may be apart of a shift of the court that may end up in changing this. >> any comments. >> i think that we have now seen decisions from the current court which has changed the decision. that suggests it is not clear what the future holds but that certainly is a big change.
cases like women's health or hobby lobby which i think we'll talk about if we have time that suggests the court is wrestling still with the issues of contraceptives and employers have to subsidize contraceptives with their employees if they have certain believes. reproductive health infrastructure without any health reasons and placing undue burdens to people in that state. no, it is a complicated picture. >> the court is still fighting over how do you find a non textual constitutional right. >> some of the language we saw in both the majority in griswold is still banging around. all this year later, that fight is as hot as it is then.
>> on facebook makes the 10th amendment that says the court does not have to right to do this. the federal government needs to defer to the states for all things not enumerated. >> well, you know, i think that is almost the 9th amendment argument that the court should protect people's interest that people retain rights not exclusively mentioned in the constitution and an argument that justice glover was trying to make. that argument also has not had much in the way of legs. i think it is because he suggests that states have all the power and courts have all the power is to get wrong what our balance of power should between courts and between state
legislatures, federal government. we have a separation of powers that keep any one entity in check and that's an important part of our democracy. >> i agree with rachel. that argument does not have legs. i think here as far as the court may be pushed that some point you may have a majority of justices that say show me the history and traditions where this right is embraced by the country. other justices will say no, we can name broader evolving concepts of justice, the living constitution and notation. i never see the 10th amendment get legs. >> caller: i was thinking of justice kennedy and the rise of justice thomas, due to reduction of substance of due process when it comes down to protecting your rights. >> it is hard to know. it is hard to know.
there are strong precedents now that supports the due process approach through the rights of privacy to entangle and disregard all of them would be a huge change at this point. i don't think it says easy undone as we suspected could be just of the retirement of justice. would it shape future cases and interpretations, the court's future of interpretation, undoubtedly. we see that with appointments. revolutionize process of doctrine. i think that would take more time. well, good time for this. the griswold decision is one o f the most frequently asked about cases or potential supreme court justices when they going through the senate's confirmation process. let's show you a clip from the most recent one of gorsuch.
griswold, senator as you know held the 14th amendment due process liberty clause provided rights to married couple to use contraceptive devices of the privacy of their own homes. senators, those are presence in the united states supreme court, they have been settled for 50 years nearly in the case of griswold. there are reliance interests that are obvious and reaffirmed many times. i did not see a possibility that a state would pass a law, attempting to undo that or a court of the united states would take such a challenge seriously. >> so, when you hear him in that particular, what are you hearing? >> i am shocked that he misstated the holding of griswold. it did not.
the majority did not. second, he is dodging, he said blatant words. you are not going the see this law again so please don't worry about it. it is never going to come to me. >> what did you hear? >> i heard the same and i heard that there are obsessions in some way of the holding of griswold is there a right to privacy or enumerated or not. in some ways, it misses an interesting conversation about what's limiting about the decision in other ways? that right to privacy does fot guarantee any individuals the right to gain access to those services. it does not fund public or private clinics at a higher rate. it does not speak to quality in the ways that we discuss and so i found his answer, you know, my
reaction is that's what i expect of the supreme court justice nominee would say. >> it leaves the door open and other cases to come which is outside of the framework. the last caller for us tonight. welcome. >> caller: hi, i grew up in new haven. i remember driving by the planned parenthood center and they had religious women, i don't know if they were not nuns, but they were peopl people -- they were performing a prayer service on their knees and on the sidewalk. i wonder if that was -- it was 24 hours a day for weeks. i wonder if that affected the case positively or negatively. >> from a historical positive when you teach about this. what do you tell students about
these societal framework. >> i talk about the pill and what a gigantic cultural moment it was. i talk about picking your plaintiffs as a married couple. there is still a lot of books on laws -- and you know, the pill came into and the griswold case came into a pretty conservative country on sex. i don't know of protesters or the prayers outside the clinic. i usually talk more of the pill and the technological cultural. >> and what do you tell your students? >> i often teach griswold as a family course. i tell my students a little bit about the parenting cases. the cases that came before griswold and help convince the justices in griswold that there
are fundamental rights to privacy. it gives the background to the ways and which we thought about parenting marital and intimate relationships of something that needed a closer look. that helps make sense of some of the cases to come and what are limits to that rights. there are state interests and i think, fortification laws and adultery laws, those are constitutional laws. those laws still exist in states. so, you know they don't 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 this population. >> there are about a dozen state constitutions and many statues from the country that speak to the right to privacy but it sounds like, there is going to
be continual challenges and implications of this. >> in fact, one of my students say when they taken griswold and the case that is came after. i didn't know this was a constitutional law class, i thought this is family law. i say we are going to follow this fight over what is due process, the rights that liberty clause and 14th amendment provides and we'll follow it right today. >> that's a great place too leave it. thanks both of you for being at our table tonight. reminder, we got many more cases to go. there are twelve in this series. wa we have a booklet that we put together that has the synopsis for each of the cases. you can find it on our cspan.org. thank you for being with us
this case expanded american's rights to privacy under the 4th amendment and change the way law enforcement officers conduct their investigations. our guests are jeffery rosen, president and ceo of the national constitutional center, in philadelphia and jamil jaffer a . watch landmark cases next monday and join our conversation. our hashtag is landmark cases and follow us. we resources on each site for background and cases. a link to the national constitution senter interacted.
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