Connecticut’s landmark Griswold case on solid ground despite recent scrutiny, experts say

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Estelle Griswold, left, medical adviser and executive director of Planned Parenthood Clinic in New Haven, and Ernest Jahncke, president of Parenthood League of Conn. Inc. flash victory sign as a result of court's decision.

Estelle Griswold, left, medical adviser and executive director of Planned Parenthood Clinic in New Haven, and Ernest Jahncke, president of Parenthood League of Conn. Inc. flash victory sign as a result of court's decision.


After years of frustrated efforts, Connecticut Planned Parenthood leader Estelle Griswold set out with a group of Yale faculty members in 1961 to publicly flaunt — and hopefully overturn — the state’s century-old anti-contraception law by opening a birth control clinic on Trumbull Street in New Haven.

Their efforts resulted in the U.S. Supreme Court’s landmark decision to grant married couples access to birth control across the nation in the case Griswold v. Connecticut, which established a precedent used by the court in subsequent decisions granting abortion and same-sex marriage rights.

More than a half-century later, however, conservative lawmakers and justices have increasingly aimed criticisms at the Griswold decision as part of their efforts to re-litigate established precedents — leaving the fate of the Connecticut case in doubt to some.

The latest salvo came last week from U.S. Sen. Marsha Blackburn, R-Tenn., who called the Griswold decision and other high court rulings “constitutionally unsound.”

Blackburn’s comments came as the U.S. Senate began deliberations over the nomination of Ketanji Brown Jackson to the Supreme Court, which is ruled by a 6-3 majority of Republican-appointed justices. If her nomination is confirmed, Brown Jackson would replace liberal Justice Stephen Breyer, leaving the balance of the court unchanged.

Earlier this year, the Griswold case faced similar criticism during a GOP debate for the attorney general’s office in Michigan, where all three of the candidates said the ruling improperly infringed on state’s rights.

Legal experts, however, say conservatives’ frustrations with Griswold and the subsequent decisions that have been built upon it date back to the original ruling on June 7, 1965.

Within a decade, the court had expanded the “right to privacy” established in Griswold to unmarried couples using contraceptives. In 1973, the court cited the ruling again in its Roe v. Wade decision that legalized abortion nationwide. Later, the right to privacy was also used in decisions legalizing same-sex relationships and eventually marriage.

“Without a doubt, this case does create a precedent, which the court then built on in subsequent cases,” said Reva Siegel, a professor at the Yale School of Law who has written extensively on the Griswold case.

During the failed confirmation of conservative Judge Robert Bork in 1987, Siegel said Bork’s opposition to Griswold and the right to privacy helped galvanize his critics — including then-Sen. Joe Biden — and led Republican nominees to the Supreme Court to avoid directly challenging the case for the next several decades.

That background makes it less likely that the conservative-led court will seek to fundamentally alter the Griswold precedent, Siegel said, even as Republicans are increasingly hopeful that the justices will overturn subsequent rulings such as Roe v. Wade.

“No court watcher is expecting this court now, to go so far in destroying the abortion right that it would simultaneously destroy, root and branch, the whole body of substantive due process law on which it’s based,” Siegel said. “So for now, the gay rights and rights to contraceptive access that are attached to this underlying line of cases, are not going to suffer the same fate that the abortion cases are.”

A ‘last-ditch effort’

Griswold’s opposition to the 1879 Connecticut law prohibiting anyone from using “any drug, medicinal article or instrument for the purposes of preventing conception” dated back to her early days as the executive director of the Planned Parenthood League of Connecticut. During that time, Griswold helped transport women to nearby states where access to birth control was less restricted.

Also known as Comstock laws — named for the New Canaan-born anti-vice crusader and postal inspector Anthony Comstock — Connecticut’s statute was one of many state and federal acts passed after the Civil War that aimed to limit the transmission of “obscene” or “immoral” materials.

During the early decades of the 20th Century, however, many states and the federal government had relaxed some of those restrictions to allow for the sale of contraceptives to prevent disease, leaving Connecticut with one of the strictest laws in the nation.

Still, lax enforcement of the law made it difficult at first for Griswold and other birth control advocates to mount a successful challenge, according to Shelley Geballe, an attorney and professor at the Yale School of Public Health.

“They had tried to contest the law previously to that and their case was thrown out,” Geballe said. “This was sort of their last-ditch effort to challenge the issue.”

In order to force the court to confront the issue, Griswold and a gynecologist from the Yale School of Medicine, C. Lee Buxton, opened their New Haven clinic in 1961 and offered counseling services and prescriptions for birth control in direct violation of the law.

According to Geballe, Griswold contacted the local state’s attorney to make sure he was aware of what they were doing. The pair were promptly arrested, convicted and each fined $100, which began their legal battle.

During their appeals, Griswold and Buxton were represented by two Connecticut attorneys and Yale graduates, Thomas Emerson and Catherine Roraback, who argued the law and its selective enforcement violated due process under the constitution.

In 1965, the Supreme Court ruled 7-2 in favor of Griswold and for the first time determined that various amendments to the constitution had created a “right to marital privacy.”

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship,” Justice William O. Douglas wrote for the court’s majority.

Griswold and her attorney, Roraback, were later inducted into the Connecticut Women’s Hall of Fame while Emerson was cited by Justice Douglas as the nation’s “leading First Amendment scholar.” Griswold died in 1981 at the age of 81 in Fort Meyers, Fla.

While Siegel said Douglas’ decision is likely to remain intact under the court’s current membership, she noted the justices have been able to limit the scope of its impact in other ways, such as 2014 decision in which the court ruled that for-profit employers could deny health coverage for birth control if doing so would conflict with the owner’s religious beliefs.

“The court doesn’t have to overturn Griswold, in the near term, to make decisions expanding religious liberty rights in a way that could pose a threat to these other rights,” Siegel said.

Kelo v. New London

In her criticism of court jurisprudence, Blackburn also took aim at another ruling rooted in Connecticut, the 2004 decision in Kelo v. City of New London.

Bethany Berger, a professor of property law at the University of Connecticut Law School, said that decision was based on decades of earlier rulings in which the high court had ruled the constitution permitted local governments to use their power of eminent domain to support developments that did not have an exclusively public use.

The case involved a proposed mixed-use development that was supposed to create jobs and new tax revenues in a distressed area of New London during the early 2000s.

Suzette Kelo, a resident of the neighborhood set for demolition who opposed the project, filed a lawsuit seeking to stop the development and eventually attracted the interest of outside groups that waged “a very effective public relations campaign,” Berger said.

“Suddenly, everybody was very upset about what was going to happen,” Berger said. “It became really a cause to celebrate, it was very sensational across the United States.”

In the nearly two decades since the ruling, however, Berger said most states have adopted their own laws either allowing or prohibiting eminent domain from being used on economic development projects.

The Supreme Court has not shown any interest in re-litigating the issue, Berger added, and the case has slowly faded from the public’s memory.

“When the case was first decided, my students were all ‘Ah, Kelo!’” Berger said. “Now they barely remember — they don’t know what Kelo was about, most of them.”