Marion Stillson, The Confluence of Choice and Chance in the Construction of a Successful Legal Strategy: A Case Study of Griswold v. Connecticut (1986)

Federal and state Comstock laws prohibited the distribution of obscenity, including birth control devices and information about them. Connecticut, the first state to pass an antiabortion law, had one of the most draconian Comstock statutes: it prohibited use as well as distribution or possession of contraceptives and did not make an exception to save the woman's life. As the Catholic Church grew in size and power in Connecticut, bills legalizing birth control failed. At least one per session was introduced between 1923 and 1963, but few made it out of committee and none became law.

When the legislative approach failed, proponents of legalizing birth control turned to the courts. Connecticut state courts upheld the Comstock laws in State v. Nelson in 1940 and Tileston v. Ullman two years later. Federal courts broadened permissible uses of birth control between 1915 and 1936, ultimately ruling that the possession and distribution by physicians of materials that may have contraceptive purposes cannot be prohibited if the materials in questions can be used for saving the lives or protecting the health of patients.

The federal court outcome led the Planned Parenthood League of Connecticut (PPLC) to seek Constitutional relief. Led by Prof. Fowler Harper, Dr. C. Lee Buxton, Estelle Griswold, Thomas Emerson, and Catherine Roraback, PPLC sought to bring a case to the U.S. Supreme Court to invalidate Connecticut's use of its Comstock laws to bar distribution of birth control information and devices. They selected plaintiffs for eight lawsuits. Two financial need cases failed. Three cases involving ministers' First Amendment rights to counsel their congregations on family planning were never tried. And three cases involving married couples with a medical need for birth control lost at trial and were dismissed on appeal. Two of the couples took their cases to the U.S. Supreme Court. In Poe v. Ullman the Court ruled that the case was not justiciable. The lax enforcement of the Comstock laws so attenuated their impact, the Court held, that no case or controversy existed. Only persons actually subject to prosecution by the state could pursue Constitutional challenges to the laws. In dissent, Justices Douglas and Harlan suggested that the laws violated substantive due process rights to privacy and liberty.

To establish a justiciable case, PPLC set up an illegal birth control clinic in November 1961. A complaint was filed with the District Attorney and Griswold and Buxton were arrested. They were convicted and fined $100 each. State appellate courts upheld the convictions. The Supreme Court granted certiorari. In their brief, Roraback and Emerson emphasized substantive due process and right to privacy claims, with the latter stemming from the 1st, 3rd, 4th, 5th, 9th and 14th Amendments, while the state argued that it was the legislature's job to determine the legality of birth control.

The decision, 7-2 in favor of Griswold, came down on June 7, 1964. Five justices concurred in the majority opinion, while two wrote separate concurrences. Justices Douglas, Clark, Goldberg, Warren and Brennan believed the law invaded a right of privacy. Douglas and Clark thought this right stemmed from the previously mentioned provisions of the Bill of Rights, while the other three thought it was a fundamental right protected by substantive due process. Harlan rejected the incorporation doctrine and wrote a concurrence based on substantive due process alone. In his concurrence White concluded that the Connecticut law lacked the substantial state justification necessary to avoid invalidity under the due process clause. Stewart and Black dissented, claiming that there is no constitutional right to privacy.

 

 

Revised July 24, 2003 (MD)