The Revolutionary 1965 Supreme Court Decision That Declared Sex a Private Affair

Just a few weeks before her wedding in the fall of 1954, my mother asked her physician for advice about birth control. The doctor gently informed her that he could not provide her with this information. It was illegal under state and federal laws.

On her honeymoon she became pregnant, but later miscarried. To ferret out advice about birth control she turned to her friends. They had grown up middle class. And unlike her and her working-class family, they had access to doctors and medical practitioners that were providing women with the tools, information and guidance for avoiding unwanted pregnancies. It was through this network, that my parents found the information that they needed to delay starting a family; my oldest sibling was born three years after they married, and my parents chose to limit their family to four children.

Throughout most of the 20th century, my mother’s story was common. Access to information about safe and effective contraception, like condoms and how to use them, was hidden to many, yet accessible to predominantly white, middle-class men and women. All of this began to change in the 1950s and 1960s, the period when my mother and thousands of other American women learned, in guarded whispers, about which doctor would provide information about birth control.

These items, held in the collections of the Smithsonian’s National Museum of American History, document a period when access to contraception was illegal. Those with connections, however, managed to find physicians to help with family planning information. This diaphragm fitting ring set dates to roughly 1930 to 1960. NMAH
A vending machine that dates to between 1942 and 1955 was used to dispense condoms.  NMAH
This condom display cabinet, dating to the first half of the 20th century, is designed for discretion, and to hide its contents. The condoms were purportedly used for the prevention of disease, but purveyors also slyly sold them to prevent pregnancies. NMAH

Family physicians had reason to be reluctant. In 1873, Congress had passed the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, which was nicknamed the Comstock Act after social reformer Anthony Comstock, who had agitated for its passage. This federal law sparked a series of state laws that further limited access to contraceptives and information about birth control.

But as in every society, people who could have children aggressively sought out contraceptives, laws or no laws. Twentieth-century Americans were no different. In the Smithsonian’s collections, mid-20th century artifacts such as a diaphragm-fitting ring set, dating from between 1930 to 1960, reveal that physicians did assist patients in accessing contraceptives. Similarly, vending machines, which claimed to sell condoms only as disease preventatives, provided people with condoms, which were then used as contraceptives.

The state of Connecticut had some of the nation’s most severe anti-contraception laws, dating back to the late 19th century. Whether married or not, Connecticut citizens caught using contraceptives were subject to at least 60 days in jail, a hefty fine, or both. Physicians and nurses providing contraceptives were deemed accessories to the crime and liable to prison, a fine, or both.

Yet by the 1960s, those in the know had to access to information about contraceptives. They knew which doctor would provide married women with this information and which doctor was prepared to go out on a limb and provide unmarried women with this information. In some areas, doctors provided this information secretly and in other areas, they did so openly. Despite this, the state police regularly turned a blind eye, refusing to enforce the law.

As a result, Connecticut had one of the lowest birth rates in the nation, although many women who, like my mother, didn’t have access to the right information, still struggled to obtain contraception.

Long before the 1960s, physicians, public health advocates and others had repeatedly attempted to challenge Connecticut’s ban on contraception, hoping to overturn the law. But each time, they met with failure. Court decisions veered into the absurd. In 1942, judges on the state’s high court not only upheld the contraceptive ban for married couples, they also advocated “another method, positive and certain in result…[which] is abstinence from intercourse.”

Estelle Griswold, April 1963 outside the Planned Parenthood center
In 1961, Planned Parenthood activists recruited Estelle Griswold (above in April 1963) and C. Lee Buxton to lead this push. As a “respectable” married woman and a practicing Catholic, Griswold seemed the perfect choice to challenge the law.  Lee Lockwood, Getty Images

Within days of the clinic’s opening, police received a complaint that the clinic was “passing out immoral literature and breaking the law.”

In 1961, Planned Parenthood activists recruited Estelle Griswold and C. Lee Buxton to lead this push. As a “respectable” married woman and a practicing Catholic, Griswold seemed the perfect choice to challenge the law. Buxton was a gynecologist and obstetrician who was also a professor at Yale School of Medicine. Both believed that family planning was central to the stability of the American family; they also recognized that pregnancy could be dangerous for some women.

Griswold’s first attempts to challenge the law met with failure. Although she engaged in illegal activities, including ferrying women across state lines into New York to obtain information about and access to contraceptives, she wasn’t arrested. Similarly, Buxton’s attempts to challenge the law by claiming it infringed upon his ability to practice medicine also failed.

In 1961, the U.S. Supreme Court refused to overturn Connecticut’s ban on the basis that the law was not being enforced and was, therefore, a “dead statute.” An irritated Griswold responded by pointing out that the state “couldn’t enforce this law unless they put a policeman under every bed in Connecticut.”

A year later, Griswold grew bolder and more defiant. On November 1, 1961, in her hometown of New Haven, she opened a branch of Planned Parenthood with Buxton serving as its medical director. Within days of the clinic’s opening, police received a complaint that the clinic was “passing out immoral literature and breaking the law.”

Two detectives shutdown the clinic and in late November, Griswold and Buxton arrived in court for their initial hearing. They pled not guilty before a chorus of 20 “well-dressed women of the Planned Parenthood Association [who]…murmured their approval from the back of the court.” The hearing lasted just ten minutes, but Griswold and Buxton’s refusal to plead guilty signaled that the fight was on.

Over the next four years, Griswold and Buxton’s case garnered attention from across the country. Even in West Virginia, a state with no laws banning access to contraception, public health advocates were thrilled by the possibility of Connecticut’s law being overturned. Sending a death knell to these restrictive contraception laws would ensure that public funding for family planning that was targeted to those who could not afford medical care would become less controversial.

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”

In a twist that surprises many people today, support for access to information about birth control was strongest in the American South. Much of this support, unfortunately, was rooted in racist fears of large African American families and the possibility that the region’s white population could become a minority. But the South was also poorer than the North, Midwest and West in the early 1960s, and white southerners may have also supported access to birth control because they recognized that the ability to control the size of their families would help lift them and their children out of poverty.

On June 7, 1965, as Americans across the country waited anxiously to hear the outcome of the case that had begun years before, the court released its decision. Echoing Griswold’s comment about policemen under the bed, Justice William O. Douglas asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”

The answer from the court was a resounding no. In fact, Douglas concluded, the “idea [was] repulsive to the notions of privacy surrounding the marriage relationship.”

The very public decision of Griswold v. Connecticut was built on previous court cases to argue for an expanded understanding of the “right to privacy.” Douglas argued that the U.S. Constitution allows for several inexplicit rights, all of which flow from other protections explicitly stated in the document.

The right to contraception, the majority opinion argued, was one of these inexplicitly stated rights. The dissenting justices argued that Connecticut’s law was, an “uncommonly silly” one but took umbrage with Douglas and the majority for attacking the law.

In the decades that followed, Griswold v. Connecticut would go on to shape multiple landmark cases, including the 1967 decision in Loving v. Virginia, which forbade bans on interracial marriage; the 1972 decision in Eisenstadt v. Baird, which allowed individuals, regardless of their marital status, access to contraceptives; and the 2015 decision in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. But the most famous case to stem from the Griswold v. Connecticut case was the 1973 case Roe v. Wade, which drew on the idea of the right to privacy to enable a pregnant woman the right to seek and obtain an abortion.

Estelle Griswold and Cornelia Jahncke Celebrate the ruling
On June 7, 1965, the court released its decision. Echoing Estelle Griswold’s comment about policemen under the bed, Justice William O. Douglas asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” (Above, Griswold, left, celebrates with Cornelia Jahncke, president of Planned Parenthood in Connecticut.) Bettman, Getty Images

Today, as Americans face the loss of reproductive rights—everything from access to contraceptives to the right to obtain an abortion—it’s instructive to know that in 1965, the decision to overturn Connecticut’s ban on access to contraception won accolades across multiple circles, including the Catholic Church. Monsignor John C. Knott, director of the National Catholic Welfare Council, praised the ruling, saying that the Catholic Church did “not seek the power of the state to compel compliance with its moral views.” And in Connecticut’s capital city of Hartford, Archbishop Henry J. O’Brien hailed the legal interpretation behind the court’s decision.

Birth Control Information sign readied for display on NYC buses
In 1965, the ruling on Griswold v. Connecticut won accolades across the country, including the Catholic Church, and women of all classes and races gained access to information about contraception (above, a poster is readied for display in New York City buses). H. William Tetlow, Fox Photos, Getty Images

Griswold v. Connecticut leveled the playing field by ensuring that married women of all classes and races had access to information about contraception, regardless of where they lived. For years after Griswold v. Connecticut—and the later cases including Roe v .Wade—few opposed the court’s decisions in establishing a “right to privacy.” Many Americans endorsed Justice Douglas’ landmark 1965 decision that had assured them that planning when and how many children they would have as “fundamental constitutional guarantees.”

Next month Griswold v. Connecticut celebrates its 57th anniversary. Although forgotten by many Americans, the ruling has come into the spotlight again in discussions about Roe v. Wade.

History does not always give us guideposts to the future but rolling back the idea of the right to privacy enshrined in Griswold v .Connecticut would turn back a clock. Middle- and upper-class men and women would still manage to access birth control, so will people who work in the halls of the Supreme Court or Congress. Those outside this circle would be, as my mother was, vulnerable to unwanted pregnancies.

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