Happy Access to Birth Control Day

Happy Access to Birth Control Day June 7, 2015

Today, June 7, is the 50th anniversary of one of the most important Supreme Court rulings in American history, Griswold v Connecticut. The court ruled 7-2 that states could not forbid the sale of contraception to married couples (it was later extended to non-married individuals as well in Eisendtadt v Baird). Rob Boston has some details on the case:

In the early 1960s, birth control options were growing. Condoms had been around for a long time, but things like contraceptive foams, IUDs and early types of birth-control pills were still relatively new. (The U.S. Food and Drug Administration had approved the first birth-control pill in 1960.) These forms of contraception existed, but in some parts of the country there was a problem: They could be very hard to get.

Powerful religious lobbies didn’t want couples – even married ones – to have access to birth control. They used their influence to make it next to impossible for people to get birth control in some states.

That changed because of events in one New England state. In Connecticut, an 1879 law banned the sale of contraceptives. (The law had been proposed by state Sen. P.T. Barnum, who had entered politics following his national fame as a circus showman.) Not only did the law ban the sale of birth control, it also prohibited doctors from counseling couples about it. Although only sporadically enforced, the measure was enough of a nuisance that advocates of women’s rights knew that it had to go.

They first tried lobbying the legislature to repeal the antiquated law. But the state’s powerful Catholic hierarchy put the kibosh on those efforts, so Griswold, executive director of the Planned Parenthood League of Connecticut, joined forces with Dr. Charles Lee Buxton, chairman of the Obstetrics Department at Yale Medical School, to try a different strategy: They decided to test the law in court.

To create a test case, the two opened a clinic in New Haven to dispense information about birth control. The clinic didn’t handle any actual birth control devices; it merely distributed information about options. Nine days after it opened, police raided the clinic and arrested Griswold and Buxton – which was just what they wanted.

Connecticut courts were not sympathetic to Griswold’s and Buxton’s arguments, but the U.S. Supreme Court felt differently. On June 7, 1965, the high court struck down Connecticut’s anti-birth control statute. Ruling 7-2 in Griswold v. Connecticut, the court majority, led by Justice William O. Douglas, cited a “zone of privacy created by several fundamental constitutional guarantees.”

Douglas went on to write, “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. We deal with a right of privacy older than the Bill of Rights….”

Conservatives lost their minds over the ruling, of course, unloading all the usual rhetorical guns. The Supreme Court was a bunch of “black-robed tyrants” subverting the “will of the people” and “inventing new rights not found in the Constitution.” My favorite attack on the ruling came from Robert Bork, who initially praised it as correct but later, when he adopted his own twisted version of originalism, started to criticize it with some of the dumbest legal arguments this side of Larry Klayman and Mat Staver. Like this, from a 1971 Indiana Law Journal article about the ruling:

“Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratification of the two groups…why is sexual gratification more worthy than moral gratification?…

“No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”…

Unless we can distinguish forms of gratification, the only course for a principled court is to let the majority have its way in both cases. It is clear that the court cannot make the necessary distinction. There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy than another.

This is fragrant bouquet of bullshit. Of course we can distinguish these two “forms of gratification.” One “form of gratification” involves control of one’s own autonomous; the other involves control of someone else’s autonomous choices, removing the autonomy. That difference could hardly be more obvious or relevant, but Bork ignores it completely in order to reach the authoritarian result he wanted.

Anyway, happy 50th anniversary of the Griswold ruling, a huge step forward in personal liberty in this country.

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