A little-understood and endangered link unites Roe v. Wade, the 1973 Supreme Court decision that legalized abortion, and Griswold v. Connecticut, the landmark 1965 decision that legalized access to birth control for married persons. In an important piece in the summer issue of Ms. Magazine, on the stands June 14, author Ellen Chesler outlines the way one more conservative Supreme Court justice could endanger not just abortion rights but four decades of Americans’ access to contraception.
Handed down by the US Supreme Court 40 years ago, on June 7, 1965, the 7-2 Griswold decision established the right to privacy for individuals, in all 50 states, that underlies Roe v. Wade. Whether that right survives to celebrate 40 more years will likely depend upon the next Supreme Court vacancy.
“The Griswold v. Connecticut decision,” Chesler writes, “protected the right of married women to practice contraception and to secure access to legal and reliable reproductive-health services. It later provided the foundation for expanding privacy protections to encompass abortion.”
In other words, the privacy assumptions that supported Roe emerged from Griswold. But an ominous 1992 ruling narrowed the court’s support for those assumptions to a 5-4 margin. Should a new justice change the tally, the federal zone of privacy could close against reproductive decisions like abortion and contraception, returning jurisdiction to state governments. And many state legislatures have already enacted restrictions on abortion rights.
In 1961, Estelle Griswold was executive director of the Planned Parenthood League of Connecticut, where contraceptive sales were banned. She and a colleague opened a birth control clinic and were arrested and fined for dispensing contraceptives to a married couple. “When their case finally reached the Supreme Court, seven of nine justices agreed that a zone of privacy safeguarding birth control inheres in what Justice William O. Douglas called a ‘penumbra’ (a shaded rim between darkness and light) of the Constitution and the Bill of Rights,” Chesler writes.
That is, although the founding documents do not explicitly guarantee privacy rights to individuals, such rights are implicit in them. The decision paved the way for Eisenstadt v. Baird, the 1972 Supreme Court decision that extended the same privacy protections Ð and thus the right to birth control Ð to unmarried women. And that led the following year to the historic Roe v. Wade decision, which expanded the privacy doctrine to abortion. It granted women and their doctors the legal right not just to prevent, but also to terminate, unwanted early pregnancies.
The entire piece on the connection between the two cases and prospects for the future is available at: www.msmagazine.com/summer2005/birthcontrol.asp
For more background, read the introduction to the special Urgent Report section in which the piece appears: www.msmagazine.com/summer2005/urgentreport.asp
Ellen Chesler, the article’s author, is available for interviews during this anniversary period. Author of the acclaimed biography Woman of Valor: Margaret Sanger and the Birth Control Movement in America. Chesler is based in New York City.
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