Griswold v. Connecticut (1965)

Editor's note: This article replaces a previous article on the same topic that was published in 2008.

On 7 June 1965, in Griswold v. Connecticut (1965), the United States Supreme Court decided, in a seven to two decision, that married couples have the right to purchase and use contraceptives without government restriction. The case considered the constitutionality of a Connecticut state statute from 1879 that prohibited the sale or use of any contraceptive device or medication. In 1961, Estelle Griswold, an executive director of the Planned Parenthood League of Connecticut, hereafter PPLC, and physician Charles Lee Buxton were convicted for selling contraceptives at a pregnancy clinic they opened in New Haven, Connecticut, in violation of state law. Griswold and Buxton challenged the constitutionality of the Connecticut law, claiming it violated the Due Process Clause of the Fourteenth Amendment of the US Constitution, which states that the state government cannot infringe upon rights of citizens without a fair process, such as a trial. Griswold v. Connecticut helped establish an inferred right to privacy within the amendments of the US constitution, granting the right of married couples to access contraceptives and setting the foundation for future cases involving contraception, abortion, anti-sodomy laws, and marriage.

1. Background and Context
2. Arguments in the Case
3. The Court’s Ruling
4. Impact of the Case

Background and Context

Griswold v. Connecticut was one of the first legal challenges to the precedent set by the Comstock Act, a law the US Congress passed in 1873 banning the use of the federal postal service to send obscene material, contraceptives, abortifacients, and letters with sexual content. The Comstock Act does not, however, provide a definition of “obscene material,” allowing for arrests and charges under the act to be subject to the discretion of law enforcement and state courts. In addition to the federal Comstock Act, individual state laws had their own regulations that often expanded the restrictions. Comstock laws refer to the series of laws, state and federal, involving the prohibition and regulation of materials relating to contraceptives, abortion, and sexual activity. At issue in Griswold v. Connecticut was the Comstock law from Connecticut passed in 1879 that prohibited the sale and public display of contraceptives.

Before Griswold v. Connecticut, an earlier challenge to the Connecticut Comstock law came in 1943 with a case called Tileston v. Ullman (1943), hereafter Tileston. In Tileston, a physician challenged the Connecticut contraceptives ban, arguing that the law harmed his female patients who had conditions that would endanger their lives if they became pregnant. He challenged the law based on the Fourteenth Amendment, which states that the state cannot deprive someone of life, liberty, or property without due process. The Supreme Court of Errors of Connecticut, known as the Connecticut Supreme Court, as of 2024, sided against the physician, who then appealed to the US Supreme Court. However, the US Supreme Court dismissed the case without a hearing, arguing that the physician was without standing. Standing is the right to bring a case to trial based on the level of connection a plaintiff has to the potential or actual harm the law or situation within the case may cause. Since the lack of contraceptive access would not personally harm the physician, his potential harm from the contraceptive ban was deemed insufficient for a Supreme Court ruling. After Tileston, contraceptives continued to be illegal in the state of Connecticut, resulting in continued challenges in the following decades.

An additional challenge came in 1961 when Buxton, Chair of the Department of Obstetrics and Gynecology at Yale School of Medicine in New Haven, Connecticut, and later, one of the litigants in Griswold v. Connecticut, challenged the constitutionality of the contraceptive ban in Connecticut. The case, titled Poe v. Ullman (1961), was also dismissed by the Supreme Court. However, that dismissal was due to a lack of ripeness. Lack of ripeness refers to cases where the law is rarely enforced, which, according to Justice Felix Frankfurter, who authored the Court’s the opinion in the Poe v. Ullman case, makes the case not important for the court to try.

Griswold became executive director of PPLC in 1954, overseeing state-wide operations for the organization, including transporting women across state lines to receive birth control and promoting legal challenges to laws restricting contraceptives. Griswold and the PPLC opened a birth control clinic on 1 November 1961 in New Haven, to offer counseling and prescribe contraceptives, which challenged the Connecticut Comstock law. Ten days after the clinic’s opening, the state arrested Griswold and Buxton for distributing information about and prescribing contraceptives to married couples. They were tried, convicted by a judge, and fined one hundred dollars each. Griswold and Buxton appealed the conviction. However, both the circuit court and the Supreme Court of Errors of Connecticut upheld the convictions. The US Supreme Court agreed to hear the case in 1964.

Arguments in the Case

Oral arguments before the Supreme Court began on 29 March 1965. During oral arguments, then Yale Law School dean Thomas Emerson represented Griswold and Buxton, and state prosecutor Joseph Clark represented the state of Connecticut. During Emerson’s argument, he clarified that he desired to make no argument for a violation of the Equal Protection Clause, since the Connecticut law applied equally to both married and unmarried women. Instead, Emerson argued that the Connecticut law violated the due process rights of married couples. The Due Process Clause of the Fourteenth Amendment requires that laws not be arbitrary, capricious, or unreasonable and, further, that they serve a legitimate legislative purpose. Emerson argued that the Connecticut law was indeed arbitrary and unreasonable and, further, that it was an invasion of married couples’ right to privacy that did not have a legitimate legislative purpose.

Clark began his argument by stating that the case was not for the Court to decide, rather state law should be interpreted by state courts. In response to questions about the birthrates in states with birth control restrictions, Clark cited an article, “Our Population: The Statistics Explosion,” written by Richard M. Scammon, the head of the Census Bureau, that discusses the declining birth rate, even in states that restrict contraceptives, and contradicts concerns about overpopulation. However, when pressed about whether the Connecticut law was intended to increase the population, Clark admitted that he believed the law was actually to enforce standards of morality. He argued that enforcing morality, which in that case meant discouraging sexual relations between unmarried individuals, is a valid use of government power.

The Court’s Ruling

On 7 June 1965 the Supreme Court decided in favor of Griswold and Buxton seven to two. Despite the majority in favor of Griswold and Buxton, the justices did not all share the same legal reasoning behind their position. Justices Earl Warren, William Douglas, Tom Clark, William Brennan, Arthur Goldberg, Bryon White, and John Harlan signed the majority opinion. Writing for the majority, Douglas first establishes that Griswold and Buxton had standing to bring the case against a law restricting the right of married couples since they interact with married couples within their professional capacity. As such, the case was not dismissed on the same grounds as Tileston, since the physician in that case would not have experienced any consequences. Instead, Douglas argues that the case is more similar to the Supreme Court Cases of Truax v. Raich (1915) and Pierce v. Society of Sisters (1925). In Truax v. Raich, the Court found that employees had standing to challenge laws that violated their employer’s rights. Similarly, the court decided in Pierce v. Society of Sisters that private school owners could sue on behalf of their students.

After establishing the standing of Griswold and Buxton, Douglas evaluates the merits of the arguments. He begins by rejecting the due process argument, which was most of what Emerson discussed during oral arguments. Douglas instead moves to the First Amendment’s protection of speech and association by citing Pierce and a similar case, Meyer v. Nebraska (1923), where students were not allowed to learn the German language in a private school. Douglas argues that since the First Amendment unambiguously protects the right to speak and print information, the right to distribute, think about, and receive information must also be protected, despite such rights not being explicitly stated in the text of the amendment itself. Similarly, he cites a court opinion from NAACP v. Alabama (1958) that states that the First Amendment right to association would be violated if a group was forced to disclose their private membership lists to the government. Without a right to privacy concerning whom one associates with, there would not be substantive protection of free association, despite clear constitutional protection. As such, Douglas argues that there is a penumbra, or an implied right, to privacy found in the First Amendment since the right to freely associate would be undermined if there was no right to privacy. Douglas argues that without also protecting those implied or penumbral rights that undergird the explicit textual rights, the Constitution would fail to preserve those same textual or explicit written rights.

Douglas continues to use the concept of penumbras to argue that the Constitution protects implied “zones of privacy.” In addition to the privacy protection found in the First Amendment, Douglas cites the Third, Fourth, Fifth, and Ninth Amendments as necessitating their own penumbral privacy protections. The Third Amendment, which protects against compelled quartering of soldiers, protects the home, which is an aspect of privacy. More explicitly, the Fourth Amendment, which prohibits unreasonable searches and seizures, asserts an expectation that personal spaces and effects are private. The Fifth Amendment, which protects citizens from self-incrimination, suggests protections for personal privacy. Finally, the Ninth Amendment states that simply because rights are explicitly expressed in the Constitution, that does not rescind all other rights not mentioned, allowing for implied rights to exist.

After establishing his argument for an implied right to privacy in the Constitution, Douglas then evaluates how that right applies to Griswold v. Connecticut. He states that the relationship of married people falls in a “zone of privacy” created by constitutional amendments, and that forbidding the use of contraceptives is detrimental to the preservation of the zones. He concludes the opinion by stating that the right to privacy is far older than even the Bill of Rights given the historical prevalence of the institution of marriage before the founding of the US or the writing of the Constitution.

Goldberg, in a concurring opinion also joined by Warren and Brennan, agrees with the majority opinion about an infringement on the right to privacy, however, he states that he wanted to emphasize the role of the Ninth Amendment in protecting individual liberty. He also cites Bates v. Little Rock (1960), which found that the government must have a compelling state interest in order to legally infringe on individual liberty. Goldberg states that, although the government does have the right to legislate to prevent immoral behavior and sexual promiscuity, the Connecticut law is overly broad given that it encroaches on the rights of married couples and unmarried couples indiscriminately. In a separate concurrence, Justice Harlan writes that while he voted in favor of Griswold, he had a different reasoning and was unable to join the majority opinion because it did not strike down the Connecticut statute based on the Due Process Clause of the Fourteenth Amendment.

Two justices, Hugo Black and Potter Stewart, wrote separate dissenting opinions. Black begins his opinion by stating that he finds the Connecticut law offensive and disagreeable, yet the criticisms, in his view, do not make the law unconstitutional. Black states that if Buxton were punished solely for expressing information about contraceptives, he would agree that the law violated First and Fourteenth Amendment rights. However, since Griswold and Buxton carried out exams, supplied contraceptives, and advised couples on their usage, Black argues that they deserve to be punished for assisting others in violating the law. In his view, simply because some speech was involved in the process, it does not mean all of their actions are protected by the First Amendment.

Furthermore, Black challenges the existence of a right to privacy, stating that there is nothing within the Constitution that forbids laws that impede on privacy so long as they do not violate an explicit amendment. Further, he criticizes the majority opinion for substituting, in his view, the definitive right against unwarranted search, for a more nebulous right to privacy. Since judges can vaguely interpret what a right to privacy means, Black warns that relying on that type of reasoning could later be used to justify eroding rights rather than expanding them. He states that the Court should not substitute the simple and explicit language present in the Constitution for abstract concepts like privacy. Finally, he concludes by outlining his concerns that his colleagues on the bench are claiming power for the judiciary branch using the Ninth and Fourteenth Amendments to veto any legislative acts that judges may personally find offensive or unreasonable.

In an additional dissenting opinion, Stewart, joined by Black, explains his disagreements with the majority’s ruling. Similarly to Black, Stewart voices his disdain for the law, believing it to be ridiculous and antiquated. He states that his personal preference would be for contraceptives to be available for individuals based on personal choice rather than government regulation. However, he explains that he sees his role on the Court as judging the constitutionality of laws rather than the quality. Stewart then runs through the amendments cited by the majority opinion, stating that the law does not directly violate any of them. He takes issue with the argument in the majority opinion and the Goldberg concurrence that the Ninth Amendment could overrule a law passed by the elected officials of a state since the Amendment was intended to limit the federal government, not state governments.

Impact of the Case

Following the decision, several landmark cases relied on precedent established in Griswold v. Connecticut to expand contraceptive and gay rights. In 1972, the Supreme Court decision in Eisenstadt v. Baird (1972) extended the right to access contraceptives to unmarried women. In 1973, in Roe v. Wade (1973) and the subsequent 1992 ruling in Planned Parenthood v. Casey (1992), the Supreme Court determined that the right to privacy extends to accessing abortions. The precedent established in Griswold v. Connecticut was also foundational in expanding gay rights, including in 2003 with Lawrence v. Texas (2003) and in 2015 with Obergefell v. Hodges (2015) which are, respectively, the cases in which the Court ruled that bans on same-sex sexual intercourse and same-sex marriages, respectively, were unconstitutional. In 1971, the US Congress repealed the regulations on contraceptives in the Comstock Act, while maintaining the restrictions on abortifacients, or substances that induce abortion. As of 2024, there is not a clear judicial interpretation of the constitutionality of the Comstock Act regulation of abortifacients, with lower courts in different parts of the US coming to diverging opinions on the question.

In addition to its legal legacy, Griswold v. Connecticut also helped increase access to contraceptives across the US. Along with the Griswold v. Connecticut decision, the 1960s saw several developments surrounding the effectiveness and availability of contraceptive medications and devices as well as education about them. The presence of sales bans on contraceptives before Griswold v. Connecticut had a negative effect on women’s use of contraceptives, even if the bans were not enforced. A 2010 study in the American Economic Review found that, in 1965, women living in states that had a contraceptives ban were twenty- to twenty-five percent less likely to have ever used oral contraceptives. A confluence of the aforementioned factors, as well as the constitutional protection for married women to access contraceptives, contributed to the decline in US fertility rates by fifty percent in the two decades after Griswold v. Connecticut.

After the decision, Griswold reopened the New Haven clinic in 1965. She resigned from her position as executive director of the PPLC in 1965, shortly after the reopening. Griswold died on 13 August 1981, at the age of eighty-one. Buxton took a leave of absence from Yale Medical School due to poor health in 1965. He died in Connecticut on 7 July 1969, at the age of sixty-four.

The right to privacy found in Griswold v. Connecticut had far-reaching implications, impacting cases involving abortion, contraceptives for unmarried individuals, and marriage, with more than 37,000 citations in US case law as of 2024. After over fifty years, one of the largest challenges to Griswold v. Connecticut came in 2022 with Dobbs v. Jackson Women’s Health Organization (2022), hereafter Dobbs. In Dobbs, the Supreme Court excluded abortions from the right to privacy. In the majority opinion for Dobbs written by Justice Samuel Alito, he states that abortion is a fundamentally distinct issue from other liberties protected by the right to privacy. However, Clarence Thomas, in a concurrence, states that the court must also reexamine any cases that rely on substantive due process, which is the legal theory that governments should have sufficient justification to deprive individual liberties. Thomas explicitly names Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges as wrongly decided cases needing reevaluation. Developments in abortion jurisprudence, such as Dobbs, leave Griswold v. Connecticut and thousands of subsequent cases that rely on its holding in a precarious position.