It's Not About Contraception

I hate to say I fcking told you so, but I fcking told you so. https://t.co/ZhSNrEv43q

— Charles P. Pierce (@CharlesPPierce) March 21, 2022

Griswold v Connecticut

Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decline that invitation, as we did in West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.

In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense, but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U. S. 415, 371 U. S. 430-431. In Schware v. Board of Bar Examiners, 353 U. S. 232, we held it not permissible to bar a lawyer from practice because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" (id. at 353 U. S. 244), and was not action of a kind proving bad moral character. Id. at 353 U. S. 245-246.

Those cases involved more than the "right of assembly" -- a right that extends to all, irrespective of their race or ideology. De Jonge v. Oregon, 299 U. S. 353. The right of "association," like the right of belief (Board of Education v. Barnette, 319 U. S. 624), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion, and, while it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

I used to have arguments with lawyers I respected about the legal foundations of Roe.  One objection frequently raised was the "penumbral right to privacy" upon which Roe rests.  They never complained about the reasoning, or the result, in Griswold, however.  Nobody did.  But it wasn't invented in Roe, or even in Griswold. It's just a question of what it was applied to.

We recently referred in Mapp v. Ohio, 367 U. S. 643, 367 U. S. 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully an particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).

We have had many controversies over these penumbral rights of "privacy and repose." See, e.g., Breard v. Alexandria, 341 U. S. 622, 341 U. S. 626, 341 U. S. 644; Public Utilities Comm'n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."

Here's where I want to underline that the law in question in Griswold, like the law in question in Roe, or in Loving v. Virginia, was a criminal sanction that punished the people in the relationship (impending motherhood in Roe, marriage in Griswold and Loving) with "the maximum destructive impact." The cases weren't, in other words, a matter of public policy expressed through regulation or government agencies.  They were instances where the state used its police power to punish individuals with the maximum power the state wields:  the power to imprison, to take away liberty.  And that's what some people want to return us to.  All in the interest of overturning Roe.

Because the fundamental precursor to Roe, according to the Court's opinion in that case, is Griswold.  Undo Griswold, and Roe/Planned Parenthood v. Casey, disappears.  Griswold is seen as the thread which undoes the tapestry.  But that tapestry, like so many things in the law, especially Constitutional law, is a much bigger picture than critics of Roe or Griswold suppose.  In other words:  be careful what you ask for; you just might get it.

The first paragraph quoted there is telling.  Lochner held that:

The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

Which sounds anodyne enough, except the case came to the Court over the power of New York state to enact health laws governing labor conditions in bakeries.

There is no reasonable ground, on the score of health, for interfering with the liberty of the person or the right of free contract, by determining the hours of labor, in the occupation of a baker. Nor can a law limiting such hours be justified a a health law to safeguard the public health, or the health of the individuals following that occupation.

Section 110 of the labor law of the State of New York, providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution. 

Which is quite a different kettle of fish. The Griswold court dismisses the idea of relying on Lochner by citing 5 cases as precedent for its Griswold holding.  There is, in other words, a whole forest of laws to be cleared to return us to that one.  What was that line in "A Man For All Seasons" about cutting down all the laws of England to get at the devil? More had different reasons for his argument, but the metaphor is a sound one.  If we're going to undo the very fabric of modern constitutional law, who will stand in the wind that blows then? As Griswold says, "we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment."  That's far beyond undoing abortions, or the right to privacy embraced in Griswold.  I would point out again the activating issue is not abortion or access to contraception:  its the question of due process and the power of government to impose itself between persons in their most intimate relationships (marriage, and motherhood).  It's attractive to argue there are other matters involved, but in the legal analysis of those two questions, that is the only issue:  what is the power of the state to interfere?  Which is ironic, no?

"You once wrote that every judge has 'personal, hidden agendas' that influence how they decide cases," she said. "I can only wonder what your hidden agenda is. Is it to let child predators back to the streets? Is it to restrict parental rights and expand government into our schools and private family decisions? Is it to support the radical left's attempt to pack the Supreme Court?"

Sen. Marsha Blackburn, questioning Supreme Court candidate Ketanji Brown Jackson.