Charles Petzold

Just fifty years ago, birth control was illegal in the state of Connecticut. The law specifically prohibited "any drug, medicinal article, or instrument for the purpose of preventing conception," and also applied to someone who "assists, abets, counsels, causes, hires or commands anyone" to use these means of birth control. The punishment was a fine of at least $50, and a jail sentence of between 60 days and one year.

The original Connecticut law dated from 1879, and in subsequent decades it managed to survive the transition from Connecticut's Puritan tradition to a Roman Catholic tradition. (Massachusetts had a similar tradition and a similar law.) To be sure, the law was almost never enforced: Drug stores sold condoms "for prevention of disease only" and many women were able to obtain contraception from their physicians. However, repeated attempts to repeal the law failed, and Connecticut did not have any family-planning clinics.

Clinics are important. In the United States, clinics have been essential venues for poor people to obtain medical assistance, including family planning. The availability of birth control in Connecticut was thus economically determined, and poor women couldn't get what they called the "rich woman's secret" to preventing pregnancy. At the time, this "rich woman's secret" was the diaphragm.

So when Estelle Griswold, executive director of the Planned Parenthood League of Connecticut (PPLC), opened a family-planning clinic in New Haven on November 1, 1961, she knew she was breaking the law. That was a primary objective. The intent was for Estelle Griswold to be arrested, and for the courts to decide whether the Connecticut law was truly constitutional.

(In researching this blog entry, I am indebted to John W. Johnson's book Griswold v. Connecticut: Birth Control and the Constitutional Right to Privacy, University Press of Kansas, 2005. Despite the rather stodgy title, the book is a great read and offers fascinating insights into this slice of American history.)

At first it appeared that the Planned Parenthood Center of New Haven would be allowed to operate freely, but a man named James G. Morris — a Roman Catholic father of five — took the bait. He filed a complaint with the circuit court prosecutor that the clinic was "passing out immoral literature and breaking the law" (Johnson, pg. 80) and later told reporters "I think that a Planned Parenthood Center is like a house of prostitution. It is against the natural law, which says marital relations are for procreation and not entertainment." (pg. 83, 84)

Soon a couple of detectives visited the clinic. "They were greeted by Estelle Griswold. She appeared to the two detectives to be positively delighted by their visit. Griswold had, in fact, been preparing for this confrontation ever since she assumed the executive directorship of the PPLC in 1953; it was to become one of the high points of her life." (pg. 81) She was arrested on November 10.

The case then began its slow progress through the courts. The legal team consisted of civil liberties lawyer Catherine Roraback and Yale Law School professor Fowler Harper, who crafted an argument based on the right of privacy of married couples. Harper wrote that

when the long arm of the law reaches into the bedroom and attempts to regulate the most sacred relations between a man and his wife, it is going too far. There must be a limit to the extent to which the moral scruples of a minority, or for that matter a majority, can be enacted into laws which regulate the sex lives of all married people.... Nothing is more offensive to the concept of our right to be let alone than putting the criminal law into the privacy of the marriage relation. (pgs. 44, 48)

It has often been noted that the word "privacy" does not appear in the United States Constitution, a fact that might lead some strict constructionists to assert that the concept simply does not exist, at least in any sort of legal realm. But there's a very good reason why the word is absent from the Constitution. According the Oxford English Dictionary (2nd edition), the use of the word "privacy" in the sense "The state or condition of being alone, undisturbed, or free from political attention, as a matter of choice or right; freedom from interference or intrusion" (v. XII, p. 515, italics added) did not enter the English language until 1814 — a couple decades after the Constitution was written. The "right to privacy" didn't become a legal concept until many decades later, when lawyers Louis Brandeis and Samuel Warren wrote an article "The Right to Privacy" for The Harvard Law Review in 1890.

Very strict constructionists might limit the meaning of the Constitution to the vocabulary of the men who composed it, in which case there can be no such right as "privacy" because the word is off limits. But in a dissent to the famous Olmstead wiretapping decision of 1928, Justice Oliver Wendell Holmes had referred to a "penumbra" of the Bill of Rights that encompassed more than the literal words. Indeed, you can see elements of privacy in the 1st, 3rd, 4th, 5th, and 9th Amendments to the Constitution that form the backbone of the Bill of Rights, as well as the 14th Amendment. As Justice Holmes wrote:

[The Founders] sought to protect Americans in their beliefs, their thoughts, their emotions and sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man. (pg. 113)

In a brief for the Griswold case by Yale Law School professor Thomas Emerson concurred:

The Constitution nowhere refers to a right of privacy in express terms. But various provisions of the Constitution embody separate aspects of it. And the demands of modern life require that the composite of these specific provisions be accorded the status of a recognized constitutional right. (pg. 112)

Indeed, many previous court decisions over the decades had implicitly derived a right of privacy from the Constitution. (See Johnson's book for many examples.) So when the Griswold case was finally decided by the Supreme Court in 1965, the court ruled 7–2 against the state of Connecticut.

The decision was controversial then, and to some Americans, it remains controversial today. But in the 45 years since the Griswold v. Connecticut decision, the legal concept of privacy has gone far beyond allowing married people to use contraception. In 1971 the Eisenstadt v. Baird decision extended Griswold to unmarried people based on the equal protection clause of the 14th Amendment. Two years later, the Roe v. Wade decision further extended privacy rights based on the due process clause of the 14th Amendment.

More recently, the Lawrence v. Texas decision knocked down laws in 13 states that made sodomy between two men illegal, paving the way towards the most important civil rights advance of recent years: marriage equality.

Although individuals may have nits to pick with some of these decisions, the right to privacy has become engrained in American culture and attitudes. It is now safe to say that the right to privacy is as American as life, liberty, and the pursuit of happiness, and pretty much indistinguishable from them.

Let's hear from Sarah Palin, for example. In Katie Couric's famous 2008 interview with the Vice Presidential candidate, the following exchange occurred (source):

Couric: Do you think there's an inherent right to privacy in the Constitution?

Palin: I do, yeah I do.

Couric: It's the cornerstone of Roe versus Wade.

Palin: I do, and I believe that individual states can best handle what the people within the different constituencies in the fifty states would like to see their will ushered in in an issue like that.

More recently, Samantha Guthrie had a similar discussion with Donald Trump, who seemed entirely mystified by the question (source):

Guthrie: Is there a right to privacy in the Constitution?

Trump: I guess there is. I guess there is.

Guthrie: So how is that...

Trump: And why, just out of curiosity, why do you ask that question?

Guthrie: Well I'm just wondering how that squares with your pro-life views.

Trump: Well, it's a pretty strange way of getting to pro-life. I mean, it's a very unique way of asking about pro-life. Why are you... What does that have to do with privacy? How are you equating pro-life with privacy?

Of course, not every Republican Presidential candidate is as shockingly ignorant of American history as Sarah Palin and Donald Trump. One Republican very familiar with Griswold v. Connecticut and its implications is former Pennsylvania Senator Rick Santorum. Rick Santorum is running for President and while his poll numbers are currently very low, it's important that the American people become familiar with his views.

Back in 2003, Rick Santorum was interviewed by Lara Jakes Jordan of the Associated Press. You can read a an extended chunk of that interview, in which he declares his opposition to the right of privacy in no uncertain terms.

In that interview, Lara Jordan questions Santorum on statements he had made previously where he blamed the child molestation scandal within the Catholic Church on liberalism. He responds:

Again, it goes back to this moral relativism, which is very accepting of a variety of different lifestyles. And if you make the case that if you can do whatever you want to do, as long as it's in the privacy of your own home, this "right to privacy," then why be surprised that people are doing things that are deviant within their own home? If you say, there is no deviant as long as it's private, as long as it's consensual, then don't be surprised what you get. You're going to get a lot of things that you're sending signals that as long as you do it privately and consensually, we don't really care what you do. And that leads to a culture that is not one that is nurturing and necessarily healthy. I would make the argument in areas where you have that as an accepted lifestyle, don't be surprised that you get more of it.

Notice how Santorum is blurring the issue with his use of the word "consensual." It's useful to remember that the scandal within the Catholic Church mostly involved children below the age of consent. Our society has an extremely wide consensus that children are not capable of making decisions for themselves. For this reason, countries and states establish a legal age of sexual consent, and sex with a child below that age is simply not considered to be consensual. It is instead statutory rape regardless whether it take place in a playground or in the privacy of a home or rectory.

Santorum then goes on to repeat the rather tired platitude that he has "no problem with homosexuality" but does "have a problem with homosexual acts." At the beginning of the next passage, Santorum alludes to the Lawrence v. Texas case then being argued in the Supreme Court:

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. Because, again, I would argue, they undermine the basic tenets of our society and the family. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold — Griswold was the contraceptive case — and abortion. And now we're just extending it out. And the further you extend it out, the more you — this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.

Notice Santorum's mention of the Griswold case. He continues with perhaps the most famous passage of this interview:

Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality —

As a result of this particular passage, columnist Dan Savage plotted a way to associate the word santorum with something that previously had no word but was guaranteed to gross out the fogies. It became the most successful Google Bomb ever.

But let's allow the former Senator to continue:

The idea is that the state doesn't have rights to limit individuals' wants and passions. I disagree with that. I think we absolutely have rights because there are consequences to letting people live out whatever wants or passions they desire. And we're seeing it in our society.

Lara Jordan specifically asks "Would a President Santorum eliminate a right to privacy...?" and Santorum responds:

I've been very clear about that. The right to privacy is a right that was created in a law that set forth a (ban on) rights to limit individual passions. And I don't agree with that. So I would make the argument that with President, or Senator or Congressman or whoever Santorum, I would put it back to where it is, the democratic process. If New York doesn't want sodomy laws, if the people of New York want abortion, fine. I mean, I wouldn't agree with it, but that's their right. But I don't agree with the Supreme Court coming in.

In other words, Rick Santorum wants the majority to dictate what human rights and privacy rights are granted to the rest of the people. That's simply not how we do things in this country.

I suppose we really need to commend Rick Santorum for knowing something about Constitutional history. It's an area where Sarah Palin and Donald Trump haven't the slightest clue. It's also commendable that he clearly identifies exactly how he feels. But that's not reason in itself to vote for him.

Rick Santorum wants to be President. He also wants into your bedroom to make sure you're not doing anything he disapproves of. He's clearly unfit for either job.