Onward Into The Past!

Republican Platform Chair Marsha Blackburn says Griswold v. Connecticut is “constitutionally unsound”

(Griswold v. Connecticut is the 1965 Supreme Court ruling that legalized birth control) pic.twitter.com/fqb7lR1GJS

— Biden-Harris HQ (@BidenHQ) July 16, 2024

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute, as applied, violated the Fourteenth Amendment. An intermediate appellate court and the State's highest court affirmed the judgment.

A summary of the case that came before the Supreme Court. And this is the statute the appellants were convicted under:

Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

Reverse Griswold and such criminal statutes could become law again. But to be fair, that’s probably not what Rep. Blackburn is thinking about. She’s thinking about the legal reasoning in Griswold, not the effect of the case.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.  

By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U. S. 183, 344 U. S. 195) -- indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 249-250, 354 U. S. 261-263; Barenblatt v. United States, 360 U. S. 109, 360 U. S. 112; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 369. Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

Sorry for the detail, but it’s a compact introduction to the idea of “peripheral rights” in the 1st and 14th amendments. In the abstract such unspecified rights can seem abstracted from the Constitution; but in concreto, who wants to give them up? Or not be able to claim them?

Now let’s move on to the more controversial penumbral rights;

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. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." 

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 116 U. S. 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."

"Penumbra" simply means the plain language of the Constitution can be read to include protections for individuals that, again, we would all like to have available to us, and probably expect the law to protect. So penumbral rights aren’t so much the invention of justices, as they are the recognition of protections we all take for granted and accept as part of the law.

Griswold establishes recognition of these penumbral rights, in the finest reasoning of the common law, the right to privacy that prevents (under the Constitution) states from criminalizing access to contraception for married couples (yes, married couples. Think of that when considering the demands to return to days long gone by. Or just to repeal Griswold.)

Anyway, the right to privacy in Roe was based on Griswold, so with Roe gone, ignorant and vicious eyes run back down the chain to the origin point. Why not root that out, too? If we can get rid of abortion, why not contraception? And then bring back criminalization? Sure, why not?

This isn’t conservatism, it’s recidivism.