Griswold v. Connecticut: Draft Opinion

I have been interested in the right to privacy, including its implications in abortion matters, for a long time. My blog has many posts that discuss the various implications, including different contraceptive-related cases.

Griswold v. Connecticut is a fundamental landmark case here. Nonetheless, as the short opinion itself notes, privacy has long been addressed. 

The one footnote references the seminal Boyd v. U.S. case arguing the Fourth Amendment has a broad concern. It goes to the "very essence of constitutional liberty and security" that applies "to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life."  This is a "sacred right." 

Justice Douglas (the author of Griswold) goes back to this appeal to the long-lasting nature of a right to privacy in his concurrence to Doe v. Bolton, the companion case to Roe v. Wade. Multiple opinions concerning legislative investigations address how they must have a "public" purpose. As Sinclair v. United States from the 1920s noted:

Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all other rights would lose half their value.

The Warren Court continued this in the 1950s in Watkins v. U.S.:

We cannot simply assume, however, that every congressional investigation is justified by a public need that overbalances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly.

A "right to privacy" is included among other rights expressly enumerated in the Bill of Rights. Boyd noted that at times the Fourth and Fifth Amendments (self-incrimination provision) "run almost into each other."  

As an important 1960s case involving the Self-Incrimination Clause notes, one of the values behind the provision is "our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life." (Internal cites removed)

Griswold reaffirms the idea that privacy is a fundamental constitutional value, both on its own and as an outgrowth of specific provisions of the Constitution.  Justice Douglas spoke about this before. His first draft of the opinion focused on the First Amendment. Bernard Schwartz's The Unpublished Opinions of the Warren Court provides the draft. 

[The book along with one involving cases from the Burger Court -- that one has a Doe v. Bolton draft -- is an interesting inside look at the Supreme Court. I don't agree with all of the author's commentary.]

The draft starts off in a way familiar to the readers of the final product. The draft addresses how -- unlike past contraceptive cases -- there is standing. Then, there is a discussion about how this case is not like Lochner v. New York (the term is not said, but the bugbear of "substantive due process" is involved here). This "involves an intimate relation of a husband and wife." 

A significant deletion is a sentence that firmly says that a law dealing with the "manufacture, sale, or marketing of contraceptives" would not involve a substantial federal question. The draft itself upfront says "fees were usually charged" and the clinic was "open and operating" to the public.  The Supreme Court would later strike down multiple regulations of the sale and marketing of contraceptives. The sentence was too absolute.

The draft then provides an expansive understanding of the rights of speech, assembly, and association. Again, this is much like the final product. To cite the final opinion:

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.

Also:

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 draft emphasizes how marriage and families promote "fruitful advocacy" (to cite criticism in the author's analysis). For instance:

The family is an instruction unit as much as the school; and husband and wife are both teachers and pupils. 

And later:

Marriage is the essence of one form of the expression of love, admiration, and loyalty. To protect other forms of such expression and not this, the central one, would seem to us to be a travesty. 

Then, the famous paragraph that remained:

We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

The draft phrased things differently after "Yet it":

Yet it flourishes on the interchange of ideas. It is the main font of the population problem; and education of each spouse in the ramification of that problem, the health of the wife, and the well-being of the family, is central to family functioning. Those objects are the end products of free expression and these Acts intrude on them. 

Justice Brennan opposed this much focus on marriage as some singular reason to provide exemptions from general laws. He also did not think marriage had much to do with the advocacy protected by the First Amendment. But, the opinion fits marriage among other associations. And, marriage very well is a fundamental promoter of values.  

I agree, bottom line, that the right to marriage is not merely a First Amendment right. Nonetheless, there are some clear First Amendment values involved. Marriage itself is a type of statement and expression of love and commitment. Furthermore, "fruitful advocacy" is a somewhat limited way to summarize the reasons for the rights of assembly and association. People can "assemble" for a variety of reasons.

The draft opinion does not end like the final product with that famous paeon about marriage. It cites the specter of searching "sacred precincts of marital bedrooms" line the final opinion includes a bit earlier. This would be:

repulsive to the idea of privacy and of association that make up a goodly part of the penumbra of the Constitution and Bill of Rights. Cf. Rochin v. California, 342 U.S. 165.

A few comments. Note how the opinion repeatedly uses emotional-laden words (sacred, repulsive, travesty).  

The draft opinion does not have the general discussion of privacy that the final opinion does. It does not have the infamous "penumbra/emanations" phrase. We now just have "penumbra," a highfalutin word, if used in a few Supreme Court opinions before. The justices were misguided in leaving it in when "necessary and useful in making the express guarantees fully meaningful" provided a clear means of stating the underlying principle.  

Nonetheless, the opinion ends with a hint that "the idea of privacy" is something that makes a "goodly part" of the Constitution and Bill of Rights. The draft opinion would still have the potential to promote the right to privacy principle. 

The opinion also ends with a citation to a case involving forcing people to vomit up drugs. This invasion of the "privacy of the petitioner" was found to "shock the conscience," to cite a traditional test to determine if due process of law was violated. The citation again ends with the reading thinking about the right to privacy as well as underlining the idea that the law here was outrageous. 

These principles continue to be in the news. Trump has now come out in support of leaving abortion to the states while bragging about his role in getting us there. Abortion is going to continue to be in some fashion a national concern. If he won (cf. Rochin), his supporters are already planning on using the Comstock Act to block abortion on a national level. 

We cannot take his statements at face value. He has warily not said much about abortion during his campaign. This is logical given the broad opposition to abortion bans, even in many red states. Relatedly, see the change in informed consent regulations regarding pelvic exams.

I am surprised he was this explicit here. The subject is sensitive enough that even some of his strong supporters might blanche at them. We can be cynical/savvy about his supporters being willing to look the other way because they figure he will (and did) get a lot of things they wished. 

Humans are not quite such mechanical machines. His supporters do in various cases find it uncomfortable to support him. Yes, who cares on some level, but the point does hold. Finally, many evangelicals are honestly passionate about opposition to abortion. Some will be angry and disappointed that he is saying it is a state matter. 

The bottom line is that they might not be upset enough to significantly change their support. Precedent suggests that is a safe bet. I am, however, not totally sure if this is true. Abortion is a third-rail sort of thing. 

Let us hope it helps to "reverse" (to allude to the final word of the draft option -- Reversed) some minds in the right direction.