Reading Between the Rights

This week marks the 46th anniversary of the landmark Supreme Court reproductive-rights case Griswold v. Connecticut, in which the Court struck down Connecticut's ban on the distribution and use of contraceptives (at least for married couples). The decision was important not only in itself but because it laid the framework for other important decisions like Roe v. Wade, which came less than 10 years later.

It may seem remarkable that a strong 7-2 decision striking down a stupid and unpopular law that the Warren Court's house conservative John Marshall Harlan called the most clearly unconstitutional law he had seen in his career has become such a source of controversy. The attack on Griswold represents the ability of Republicans to selectively use catchphrases to deride concepts in decisions they don't like, even if the concepts themselves are unexceptionable.

Justice William O. Douglas' opinion for the Court argued that the Connecticut statute was unconstitutional because it violated the "right to privacy."

The phrase, which has been fodder for conservatives' critiques of the Roe decision since it was made in 1973, does not, of course, appear in the Constitution. But as Justice Douglas noted: "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." If you think about what this means, it's perfectly sensible: Explicitly stated rights in the Constitution entail other rights. And yet conservative legal observers have made a cottage industry of invoking "penumbras and emanations" and "right to privacy" as if merely repeating the words were enough to refute Douglas' opinion. Throw in "judicial activism," and you have a list of the most common buzz phrases used to discredit opinions conservatives don't like.

But, whatever one thinks of Douglas' "penumbras" metaphor, his argument is on the money. Enumerated rights -- those made explicit in the Constitution -- in fact must imply other rights. As Justice Arthur Goldberg noted in his Griswold concurrence, the Ninth Amendment, which states that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," specifically instructs us not to ignore them. As Douglas analogized, there is no explicit "right to association" contained in the First Amendment. But the Court has recognized such a right because politics is organized around groups; without it, the right to free speech and assembly would be nearly meaningless. Not only has every conservative justice on the Supreme Court accepted an unenumerated "right to association"; each has been aggressive about expanding it (see, for instance, the Court's decision in Boy Scouts v. Dale).

Of course, to approve of the banal concept expressed by the "penumbras and emanations" language does not require one to accept that it applies to the particular law being examined in Griswold. But it seems obvious that Douglas was right in this instance, too. Douglas reasoned that, in combination, the First, Third, Fouth, Fifth, and Sixth Amendments imply a right to personal security, the idea that the state does not have unlimited access to one's home or the authority to interfere with intimate relationships. And these principles cannot be squared with Connecticut's ban on contraception. It's unclear what the Fourth Amendment's prohibition on "unreasonable search and seizures" would mean if people could be forbidden from using contraception at home. (What would a warrant even look like? Would a non-related couple living together be sufficient to establish "probable cause" that they might have protected sex?)

In his dissenting opinion, Justice Potter Stewart inadvertently conceded Douglas' point, arguing that Connecticut's "uncommonly silly law" was "obviously unenforceable." That's not quite true. The "due process" and "equal protection" clauses do not permit laws to be selectively or arbitrarily enforced, but this is exactly what happened with the Connecticut law. Affluent couples could obtain prescriptions for contraception, but poorer couples who needed over-the-counter contraceptives or subsidized contraception and medical advice from reproductive clinics were out of luck; drugstores feared violating the law and no Planned Parenthood clinics were allowed to operate in the state. This outcome, as the Court understood in 1965, could not be squared with constitutional requirements.

And the public understands that, too. Ultimately, whether Supreme Court interpretations of ambiguous constitutional clauses stand the test of time is whether the American people accept the outcome. With the "right to privacy," the answer is plain: It is almost inconceivable that a justice who argued that Griswold was wrongly decided could be appointed to the Supreme Court. The last nominee to publicly oppose Griswold at his or her confirmation hearing was Robert Bork, who because of this was defeated by an unprecedented margin. Since then, Republican nominees have either explicitly supported the right to privacy (as with Anthony Kennedy and David Souter) or evaded the question.

The most common current conservative argument against Roe v. Wade is not that a right to privacy doesn't exist but that it doesn't apply to the abortion case. In the language of Reagan administration solicitor general Charles Fried, the Court can "pull the thread" of Roe, reversing its decision without otherwise affecting the well-established right to privacy. This is a hard argument today; as Justice John Paul Stevens has pointed out, it's hard to argue that women have a fundamental right to reproductive freedom before pregnancy that vanishes immediately after pregnancy. But it's the only route available to anti-Roe conservatives; opposing a wholesale right to privacy is a nonstarter.

Despite the permanent entrenchment of the right to privacy in American constitutionalism, the reproductive rights that Griswold helped to expand are now under siege. Protecting the reproductive rights of American women, in particular, will require determined action in all branches of federal and state government. Progressives should begin by defending the rights announced in Griswold unapologetically. The Court was right 45 years ago, and the rights it articulated in that case are worth preserving.

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