The Law: Emanations from a Penumbra

After three trip’s to the Supreme Court in 23 years, Connecticut’s archaic (1879) birth-control law was ruled unconstitutional 7 to 2—but in a judicial free-for-all that produced six opinions and a shaky new “right of privacy” concept that is bound to baffle judges for many more years.

All nine Justices denounced the only state law in the U.S. that banned the use of contraceptives by anyone, including married couples. It had been challenged by Yale Gynecologist C. Lee Buxton and Mrs. Estelle Griswold, executive director of the Connecticut Planned Parenthood League, who had been convicted ($100 fines) for dispensing contraceptives at a birth-control clinic in New Haven. “A very bad law,” agreed dissenting Justice Hugo Black. “An uncommonly silly law,” agreed dissenting Justice Potter Stewart.

“Zones of Privacy.” What roiled the court, however, was the question of whether to void a law based on the power of every state to regulate public morals. Speaking for the court, Justice William O. Douglas asserted that “we do not sit as a superlegislature,” playing God with noxious laws. But to Douglas, himself thrice married, Connecticut’s law collided with an overriding right—privacy in marriage. In a judicial sonnet, Douglas extolled marriage as “a coming together for better or for worse, hopefully enduring and intimate to the degree of being sacred . . . an association for as noble a purpose as any involved in our prior decisions.”

The Constitution is utterly mute on the subject, but Douglas heard echoes in the Bill of Rights (the first eight amendments): “Specific guarantees in the Bill of Rights have penumbras [fringe areas],” he said, “formed by emanations from those guarantees that help give them life and substance.” According to Douglas, “zones of privacy” emanate from the First Amendment’s “penumbra” right of association, the Third Amendment’s prohibition against the quartering of soldiers “in any house” without consent in peacetime, the fourth’s guarantee against “unreasonable searches and seizures,” and the fifth’s privilege against sel-incrimination.

In addition, argued Douglas, the

Ninth Amendment implies a right of privacy by providing that “enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” So does the 14th Amendment guarantee of due process of law. Said Douglas: “Would we allow the police to search the sacred precincts of marital bedrooms for tell-tale signs of the use of contraceptives? The very idea is repulsive.”

“Shocking Doctrine.” All these emanations failed to impress dissenting Justice Stewart, who could find no constitutional infringements whatever in the law. In what conceivable way, asked he, did Connecticut’s birth-control law violate the Third Amendment ban against quartering soldiers in private homes? How could a federal court use the Ninth Amendment to take away rights assigned to the people’s elected state representatives? “We are not asked in this case to say whether we think this law is unwise, or even asinine,” said Stewart. “We are asked to hold that it violates the United States Constitution.

And that I cannot do.” Stewart’s solution: Let Connecticut citizens persuade their legislature to repeal the law.

Justice Black was equally aghast: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” Finding no such specific covering privacy, Black, who is often accused of scorning “judicial restraint,” proceeded to rake his brethren for imposing their subjective feelings on a legislature. Should the court continue this “shocking doctrine,” said Black, it will wind up as “a day-today constitutional convention.”

Meanwhile, lawyers can now spend years happily fighting over just what else the new right of privacy covers.