Women, Privacy & A Pair of Advocates

This is the 50th anniversary of Griswold v. Connecticut, which firmly established a "right to privacy," which later cases in the words of Lawrence v. Texas recognized as including a liberty regarding "autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."  I discussed a recent article discussing the contraceptives cases that argued the privacy approach had certain problems in part because it was male focused.  Felt this was somewhat overblown, but as noted here, the fact "woman" was not mentioned is striking.  Planned Parenthood v. Casey, e.g., underlined the importance of reproductive autonomy to women's lives.  

The right to privacy has been often discussed on this blog, but will briefly note again that Justice Douglas' dissent in Poe v. Ullman is very good in discussing the issues here, in more depth overall than his ultimate opinion of the Court. The importance of doctor/patient speech, noting how various provisions have "emanations" without using "penumbra," doing more to show how a "use" statute would in effect infringe the privacy of marriage  than a quick comment about sacred bedrooms (which can be searched after all in various contexts) and how privacy is important to liberty overall are covered.  The basic material would have made a good opinion mixed with the additional fleshing out of privacy found in Griswold. 

Ruth Bader Ginsburg has long saw it useful to express privacy cases here in sex/gender terms when applicable.  Her voice in some of the abortion cases might have been helpful, especially in the funding cases of the late 1970s while she was still an advocate.  One important sexual equality case in that era was Taylor v. Louisiana, which required a stricter test for the "fair cross-section of the community" in juries in respect to sex.  Justice White, who putting aside abortion was generally supportive here, noted:

If at one time it could be held that Sixth Amendment juries must be drawn from a fair cross-section of the community but that this requirement permitted the almost total exclusion of women, this is not the case today. Communities differ at different times and places. What is a fair cross-section at one time or place is not necessarily a fair cross-section at another time or a different place. Nothing persuasive has been presented to us in this case suggesting that all-male venires in the parishes involved here are fairly representative of the local population otherwise eligible for jury service.

This is a case where a basic constitutional concept -- here the jury -- is the same in respect to a certain core, but the specific application changes over time. Once upon a time, and as some have noted the Nineteenth Amendment is an important factor here though did not suddenly change everything in practice, male only juries were deemed appropriate.  In 1961, not a single justice felt a voluntary system for women jurors -- even in a case involving a woman accused of murdering her husband -- was unconstitutional.  How things changed by the mid-1970s. 

Finally, the amount of attention RBG is getting of late is deserved, but we should also remember other women legal pioneers in that era. Dorothy Toth Beasley, whose argument for Georgia to defend its "reform" abortion law in Doe v. Bolton (her boss was pro-choice and open doors to women like herself;  it was his job to defend the law, at the time a moderate one) was but one of several cases she argued in front of the Supreme Court, is one such person.  She eventually was on the Georgia Court of Appeals.  Best I can tell, she might still be active doing mediation work and a few years ago was cited as an officiant in a NYT wedding story.