The Supreme Court decision in Griswold v. Connecticut prevented states from banning the sale or use of contraceptives, contributing to the sexual revolution of the 1960’s. It also set an important legal precedent by declaring for the first time that the U.S. Constitution protects the right to privacy, a right that is not explicitly spelled out in that document.
Attempts to prevent conception have existed in human evolution and medical practice for thousands of years. Even in societies scorning birth control and sterility, the desire to control reproduction has existed. Only since the late nineteenth century, however, has there been a planned, organized effort to educate the general population about contraception.
In preliterate societies, abortion and infanticide were the chief practices limiting population growth; contraception was relatively infrequent. When attempts at contraception were undertaken, mixtures of potions, herbs, and powders were ingested, or complete abstinence or withdrawal were practiced. Egyptian papyri dating from about 1850
Prior to modern developments in birth control technology, contraception was primarily the responsibility of the male. Use of the condom to prevent the spread of syphilis was first described in 1564. By the 1720’s, condoms were used for contraception in Europe.
Female contraception historically involved various violent gestures, ingestion of potions, and the insertion of vaginal plugs and solutions, some with spermicidal effects. Pessaries and sponges were among the oldest contraceptive devices. The cervical cap and diaphragm were developed during the nineteenth century. It was in nineteenth century England, Germany, and France that contraceptive practices spread most rapidly, in part as a result of social changes, attitude shifts, and other forces such as industrialization, urbanization, and “democratization” of contraceptive knowledge. The less privileged in society gained knowledge formerly in the possession solely of the upper class.
The European influence spread to the United States, where such pioneers in birth control and women’s rights as Margaret Sanger sought to establish a system of clinics where women could obtain reliable birth control services. Such clinics also served as educational centers where private medical practitioners were instructed in contraceptive technique, a subject not taught in medical schools at that time. Other important contributions to the birth control movement in the United States were made by Charles Knowlton, Robert Dale Owen, Robert Latou Dickinson, and Clarence James Gamble. It was through their efforts, individually and collectively, that educational programs on contraception and contraceptive research were created and medical investigation conducted. The birth control movement reflected the changing social environment and growing emancipation and independence of women.
At the same time, a countermovement condemning contraceptive practice became active. Led by Anthony Comstock, director and organizer of the New York Society for the Suppression of Vice, a relentless and vigorous campaign ensued initially against birth controllers and later against gamblers. In 1873, the United States Congress passed the Comstock Act
Comstock used the power of his governmental position as special agent of the U.S. Post Office to travel around the country making arrests of those acting in violation of the law. Fear of prosecution inhibited development and dissemination of birth control knowledge and quelled freedom of expression. Sections of medical treatises containing information on birth control methods had to be excised. In 1926, twenty-four states had anticontraception laws modeled on the Comstock Act; in twenty-two other states obscenity laws were interpreted to include a ban on contraception. Constitutionality of the act was not questioned, and no clear judicial trend emerged. The act’s clause on contraception was not specifically repealed until 1971.
It was in this climate that Estelle Griswold and Charles Lee Buxton sought to challenge a state law of Connecticut that outlawed contraceptives and made their use a criminal offense. Connecticut had not generally enforced its law against individual physicians, sellers, or married couples. The law affected the poor, prohibiting them from receiving the same birth control information and supplies available to the middle class. Two prior attempts to challenge the law had failed.
The case was instigated on November 1, 1961, when Griswold and Buxton opened their clinic amid maximum publicity. Within ten days, they were arrested for dispensing birth control information and instructions to a married couple in violation of the General Statutes of Connecticut. The parties were found guilty by the Connecticut state courts and fined one hundred dollars each. They appealed their case to the United States Supreme Court, urging it to declare the Connecticut law unconstitutional. The Court overturned their conviction and caused Connecticut to repeal its birth control statute (called an “uncommonly silly law” by Associate Justice Potter Stewart
Privacy as a complex and multidimensional legal concept had not been explicitly defined in the Constitution, but the Ninth Amendment
In a 7-2 decision issued June 7, 1965, the Court held that the Connecticut law forbidding the use of contraceptives intruded on the right of marital privacy guaranteed under the Constitution. It remained for the Court to define this right, as it is not specifically enumerated in the Constitution. Justice William O. Douglas, writing for the majority, stated that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy.” He recognized that the marital relationship at issue lay within a zone of privacy derived from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution and should be protected from state and federal interference. In upholding the sanctity of marriage, Justice Douglas termed it “an association that promotes a way of life.” A law forbidding use of contraceptives rather than regulating their manufacture or sale, he concluded, seeks to achieve its goals by means having a maximum destructive impact on that relationship. Such a law was unacceptable and had to be struck down.
The immediate consequence of the Court’s decision was the repeal of birth control statutes in Connecticut and thirteen other states and a dramatic increase in the number of women who had access to birth control devices and counseling. In Griswold v. Connecticut, the Supreme Court recognized as a right what had been considered as such by the general populace—a right lying within the spirit of other freedoms expressed in the Constitution even though the right itself is not specified in the Constitution. Griswold was confined to traditional notions of contraception for married persons. In 1972, however, the Supreme Court held that the privacy guarantee extended protection to contraception for single persons; in 1977, it was held to cover minors.
These decisions demonstrated a general legal response to a changing social environment. Restrictive birth control prohibitions were replaced by more flexible regulation or none at all. A general permissiveness ensued in society. The women’s movement gained momentum; college dormitories were sexually integrated, and unmarried people openly began cohabiting. The landmark legal concept of a right of privacy in sexual matters was extended in 1973, in Roe v. Wade,
Birth control technology and capability have expanded rapidly, with the introduction of methods ranging from the intrauterine device (IUD) and the oral contraceptive (“pill”) to injectable contraceptives, subdermal implants, “morning-after” pills, medicated vaginal rings containing steroids absorbed into the bloodstream, and biodegradable systems. The pill, developed by Gregory Pincus and first approved for use in June, 1960, revolutionized contemporary birth control methods as a result of its accessibility, ease of use, simplicity, and effectiveness. Within twenty years of its advent, an estimated ten to fifteen million American women and eighty to one hundred million women worldwide were using oral contraceptives for birth control.
The principles first articulated in Griswold and followed in succeeding related cases suggest that unless the state can demonstrate a compelling interest that out-weighs individual human rights, it may not interfere with social mores—a person’s marriage, home, children, and lifestyle. In 1967, a state ban on interracial marriages was repealed; in 1968, state law forbidding private possession of obscene materials in one’s home was overturned. When these fundamental privacy interests are invoked, courts will require a state’s demonstration of a higher burden of justification or “compelling interest” viewed with “strict scrutiny” before these interests can be abridged.
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Dienes, C. Thomas. Law, Politics, and Birth Control. Urbana: University of Illinois Press, 1972. Excellent coverage of the issues from the latter part of the eighteenth century to the 1970’s. Detailed research on Comstock and Sanger, and much information about legal cases. Contains copious primary and secondary source material including cross-references, notes, appendixes, and an extensive bibliography. Written in a scholarly manner. -
Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of “Roe v. Wade.” Berkeley: University of California Press, 1998. Follows the history of U.S. legislation and court decisions relating to the right to privacy, birth control, and abortion. Bibliographic references and index. -
Himes, Norman E. Medical History of Contraception. New York: Schocken Books, 1970. Covers historic, anthropologic, economic, and sociologic aspects of contraception. Thorough coverage and meticulous detail. Written for the lay reader. -
Knight, James W., and Joan C. Callahan. Preventing Birth: Contemporary Methods and Related Moral Controversies. Salt Lake City: University of Utah Press, 1989. An excellent account of contraception and a discussion of its political and philosophical implications. Various chapters discuss human reproductive anatomy, physiology, and endocrinology, as well as giving a detailed overview of the moral debate and social policy concerns surrounding elective abortion. Contains notes and an extensive bibliography. -
Reed, James. The Birth Control Movement and American Society: From Private Vice to Public Virtue. Princeton, N.J.: Princeton University Press, 1983. Detailed account of contributions of early birth control crusaders and the entire movement from the nineteenth century to the 1970’s. The emphasis is on the role of Margaret Sanger. Written in a clear and direct fashion with numerous notes and bibliographical essays. -
Stotland, Nada Logan. Social Change and Women’s Reproductive Health Care: A Guide for Physicians and Their Patients. New York: Praeger, 1988. Historical and social context of issues of reproduction. Discussion of changing attitudes on controversial topics of sexuality, reproduction, parenting, and medical care, with case examples. Also includes suggested readings. Written in a simple manner. -
Tribe, Laurence H. “Right of Privacy and Personhood.” In American Constitutional Law. 3d ed. New York: Foundation Press, 2000. Informative treatise on constitutional law. Locates the concept of privacy within the total scheme of constitutional law. Numerous footnotes and case references. Written for an audience with a legal orientation. Also includes material on abortion, death and dying, patients’ rights, and association.
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