I have repeatedly talked about the contraceptives cases, particularly Griswold, but want to specifically talk about the set of Connecticut cases involved here over the years. That would be from 1940 until 1965. The book Liberty and Sexuality provides some in depth background. See also, Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy by John W. Johnson. Jill Lepore covers things with an up to date history including a reference to the Trubeks.
One thing that stands out in the Supreme Court cases is the lack of background of the laws themselves other than some dismissive comments by Justice Douglas in Poe v. Ullman on Comstockery in general. There is more of an attempt in a later contraceptives case involving individual use and also (particularly by the dissent) in the Hobby Lobby case as well. Cf. Justice Blackmun's extended discussion in Roe v. Wade on abortion.
[Douglas' opinion was cited in a footnote involving a lingering remnant of the Comstock law in a 1980s case. It also noted the principle that the government "may readjust its views and emphases in light of modern knowledge." Also, original purposes might be at best unclear, especially when there is no legislative history or the provision in question was inserted for various possible reasons.
So, there often is a tendency to focus on text and possible legitimate government interests alone. Nonetheless, the context of passage is surely relevant as is continuing reasons for applying the provisions. This can be selectively or erroneously applied, but such is the case for any number of interpretative mechanisms.]
It is useful to start from the beginning. Anthony Comstock pushed for the passage of a national law that banned not only the mailing of contraceptives but contraceptive information through the mails. This was part of a wider obscenity law though he also had a wider moralistic view that opposed usage by those unmarried. State laws also were passed though Connecticut was particularly broad in its targeting of use. The laws were a mixed bag but married couples were also caught in the mix, particularly since it was deemed as an aid to adultery. Concern about population originally does not seem to be the main impetus of such laws though over the years there was talk of the "wrong types" using birth control thus allowing others to overpopulate. Eventually, concern for population control was a major driver of those who wish to allow contraceptive use.
Use was not likely to be prosecuted but the aiding and abetting statute interfered with the ability of doctors to prescribe them and particularly set up public clinics for those too poor to rely on private doctors. (Margaret Sanger got in trouble in part because she was not a physician.) By the 1930s, there was a growing understanding that at least the federal law should be deemed not to apply to medical use and a lower court opinion so held. OTOH, State v. Nelson is the first of a range of cases in Connecticut that deemed it absolute. It should be underlined that doctors were actually charged here. This was reaffirmed in Tileston v. Ullman, an attempt to get a "declaratory judgment," with two judges dissenting with an opinion this time. The case was even stronger since there was a claim that the patients did not need contraceptives merely for "general health" but had conditions for which pregnancy might be life threatening. Ironically, the abortion statute did have an express exception for the life of the woman.
(Update: It was noted during the Griswold orals that it was deemed acceptable to distribute and use some of these same devices ... you just had to use them to prevent disease. Not as birth control for a disease preventing reason; that is, let's say a woman who has a condition for which pregnancy would be particularly problematic. The usage had to be simply to prevent disease, which from what I can tell means to prevent venereal disease. This would be relevant in the Massachusetts case later.
This might not have been clearly said in official practice, but it seems to be clearly the practice [see FN25], and the net result is a form of sex discrimination. Again, see that article. This was starting to be seen then, if ahead of the courts willing to accept the principle, underlining it is fatuous to be mad that equal protection wasn't thus focus of Roe v. Wade plaintiffs. Ditto complaints decades later for same sex marriage regarding sex equality claims that simply gotten little traction in courts and often in real life.
Finally, looking again at the transcript of the oral argument, the state grants if an item was for prevention of disease, it would not violate the statute. But, he notes that the items here were not of that type. Again, he focuses on VD though that is a somewhat limited scope of the term.)
Over the years, various arguments were made against the law or attempting to limit it but the state opinions do not go into much detail there. The first case does summarize thusly:
[We can toss in a technical case that held that the authorities wrongly used a law covering things like gambling supplies to seize contraceptive materials in the first case here. Justice White in his Griswold concurrence later on used the case, perhaps in an overbroad matter, to say that "Connecticut does not bar the importation or possession of contraceptive devices; they are not considered contraband material under state law." And, contra to the state attorney, yeah, basically all you had to do was take a train to New York. The broad meaning of "disease" there to mean general health should not be a tough barrier except of course for those without the means and wherewithal to make the trip. Perhaps, make it part of the honeymoon. Anyway, mere possession does not seem to be a problem.]
The Supreme Court early on deemed certain contraceptives cases as not having substantial federal question and tossed the second case because only the physician appealed. These cases were cited by the state in oral argument but the Supreme Court in Griswold did not really explain why now they deemed the matter worth their time. The issue of a "live" controversy was not the only matter to address. In time, physicians and related institutions would be a common plaintiff to represent of the interests of the patients or at times their own since they were penalized in some way. Here, however, Tileston only asserting a "right to life" when what was really involved was the well being of his patients, who were not included in the appeal, doomed the suit.
Thus, as attempts to overturn the law failed (a fact cited in the cases too to show appeals to reasonableness should rest on the legislature), the first round went to the state. The result was not no supply of contraceptives but it did make it impossible to set up public clinics. This was flagged in the oral argument and dissent in Poe v. Ullman, belying the idea of the majority that there was no live controversy. Also, as noted in the oral argument by the state, there were also now and then prosecutions for things like selling contraceptives in vending machines. The law was not a dead letter. (Yes, that is the same Ullman, even though this is twenty years later.)
Poe v. Ullman was actual two cases: the doctor and patients. A third case lagged behind and was not taken by the justices in a separate action. Trubek v. Ullman was the widest claim, with a modern day right to make decisions over childbirth flavor:
(Note that lower court in the later contraceptive case involving distribution at a lecture didn't think much of the First Amendment case either though Justice Douglas again separately relied on it. But, this case involved counseling of patients, not merely use of a contraceptive as a lecture prop.)
It is but a sign of the tip of the iceberg nature of many cases.
===
* There was a brief reference to then still pending clergy cases in the Poe v. Ullman oral argument and Liberty and Sexuality references three ministers starting a lawsuit to protect their right to counsel patients, raising free exercise and free speech claims. But, it doesn't say what happened to the litigation. I found a few references in a pair of articles and a listing of cases while they were still pending. One framed it thusly:
But, free speech [which was raised in Griswold] and freedom of religion was not in the complaint. The basic matter was that a threat to life and health required a higher degree of state justification, particularly when it interfered with marriage relations. The Griswold orals covered privacy in general more though the advocate didn't have much time to flesh it out.
One thing that stands out in the Supreme Court cases is the lack of background of the laws themselves other than some dismissive comments by Justice Douglas in Poe v. Ullman on Comstockery in general. There is more of an attempt in a later contraceptives case involving individual use and also (particularly by the dissent) in the Hobby Lobby case as well. Cf. Justice Blackmun's extended discussion in Roe v. Wade on abortion.
[Douglas' opinion was cited in a footnote involving a lingering remnant of the Comstock law in a 1980s case. It also noted the principle that the government "may readjust its views and emphases in light of modern knowledge." Also, original purposes might be at best unclear, especially when there is no legislative history or the provision in question was inserted for various possible reasons.
So, there often is a tendency to focus on text and possible legitimate government interests alone. Nonetheless, the context of passage is surely relevant as is continuing reasons for applying the provisions. This can be selectively or erroneously applied, but such is the case for any number of interpretative mechanisms.]
It is useful to start from the beginning. Anthony Comstock pushed for the passage of a national law that banned not only the mailing of contraceptives but contraceptive information through the mails. This was part of a wider obscenity law though he also had a wider moralistic view that opposed usage by those unmarried. State laws also were passed though Connecticut was particularly broad in its targeting of use. The laws were a mixed bag but married couples were also caught in the mix, particularly since it was deemed as an aid to adultery. Concern about population originally does not seem to be the main impetus of such laws though over the years there was talk of the "wrong types" using birth control thus allowing others to overpopulate. Eventually, concern for population control was a major driver of those who wish to allow contraceptive use.
Use was not likely to be prosecuted but the aiding and abetting statute interfered with the ability of doctors to prescribe them and particularly set up public clinics for those too poor to rely on private doctors. (Margaret Sanger got in trouble in part because she was not a physician.) By the 1930s, there was a growing understanding that at least the federal law should be deemed not to apply to medical use and a lower court opinion so held. OTOH, State v. Nelson is the first of a range of cases in Connecticut that deemed it absolute. It should be underlined that doctors were actually charged here. This was reaffirmed in Tileston v. Ullman, an attempt to get a "declaratory judgment," with two judges dissenting with an opinion this time. The case was even stronger since there was a claim that the patients did not need contraceptives merely for "general health" but had conditions for which pregnancy might be life threatening. Ironically, the abortion statute did have an express exception for the life of the woman.
(Update: It was noted during the Griswold orals that it was deemed acceptable to distribute and use some of these same devices ... you just had to use them to prevent disease. Not as birth control for a disease preventing reason; that is, let's say a woman who has a condition for which pregnancy would be particularly problematic. The usage had to be simply to prevent disease, which from what I can tell means to prevent venereal disease. This would be relevant in the Massachusetts case later.
This might not have been clearly said in official practice, but it seems to be clearly the practice [see FN25], and the net result is a form of sex discrimination. Again, see that article. This was starting to be seen then, if ahead of the courts willing to accept the principle, underlining it is fatuous to be mad that equal protection wasn't thus focus of Roe v. Wade plaintiffs. Ditto complaints decades later for same sex marriage regarding sex equality claims that simply gotten little traction in courts and often in real life.
Finally, looking again at the transcript of the oral argument, the state grants if an item was for prevention of disease, it would not violate the statute. But, he notes that the items here were not of that type. Again, he focuses on VD though that is a somewhat limited scope of the term.)
Over the years, various arguments were made against the law or attempting to limit it but the state opinions do not go into much detail there. The first case does summarize thusly:
The defendants assert that people have a natural right "to decide whether or not they shall have children" and a concomitant right to use contraceptives if they decide not to have them. The civil liberty and natural rights of the individual under the federal and state constitutions are subject to the limitation that he may not use them so as to injure his fellow citizens or endanger the vital interests of society.Regardless, starting a stream of strong judicial restraint rhetoric, the legislature was deemed to have broad police power over health and morals, including to guard against extramarital relations and (though unlikely an original purpose) to "promote a maintenance and increase of population." The dissent in the second case said that the language, including citing recent cases, could be read to include an exception for health. Plus, it was more dismissive of the abstinence alternative: "Even if it be conceded that such a course of conduct is reasonably practicable, taking into consideration the propensities of human nature, the resort to such a practice would frustrate a fundamental of the marriage state."
[We can toss in a technical case that held that the authorities wrongly used a law covering things like gambling supplies to seize contraceptive materials in the first case here. Justice White in his Griswold concurrence later on used the case, perhaps in an overbroad matter, to say that "Connecticut does not bar the importation or possession of contraceptive devices; they are not considered contraband material under state law." And, contra to the state attorney, yeah, basically all you had to do was take a train to New York. The broad meaning of "disease" there to mean general health should not be a tough barrier except of course for those without the means and wherewithal to make the trip. Perhaps, make it part of the honeymoon. Anyway, mere possession does not seem to be a problem.]
The Supreme Court early on deemed certain contraceptives cases as not having substantial federal question and tossed the second case because only the physician appealed. These cases were cited by the state in oral argument but the Supreme Court in Griswold did not really explain why now they deemed the matter worth their time. The issue of a "live" controversy was not the only matter to address. In time, physicians and related institutions would be a common plaintiff to represent of the interests of the patients or at times their own since they were penalized in some way. Here, however, Tileston only asserting a "right to life" when what was really involved was the well being of his patients, who were not included in the appeal, doomed the suit.
Thus, as attempts to overturn the law failed (a fact cited in the cases too to show appeals to reasonableness should rest on the legislature), the first round went to the state. The result was not no supply of contraceptives but it did make it impossible to set up public clinics. This was flagged in the oral argument and dissent in Poe v. Ullman, belying the idea of the majority that there was no live controversy. Also, as noted in the oral argument by the state, there were also now and then prosecutions for things like selling contraceptives in vending machines. The law was not a dead letter. (Yes, that is the same Ullman, even though this is twenty years later.)
Poe v. Ullman was actual two cases: the doctor and patients. A third case lagged behind and was not taken by the justices in a separate action. Trubek v. Ullman was the widest claim, with a modern day right to make decisions over childbirth flavor:
The plaintiffs are husband and wife and have lived together in New Haven since their marriage in June, 1958. Both are law students, Mrs. Trubek being twenty-one years old and her husband twenty-three years old. In March, 1959, they consulted a physician to obtain information and medical service as to the best and safest methods for the prevention of conception. They have a desire to raise a family but first wish an opportunity to adjust, mentally, spiritually and physically, to each other so as to establish a secure and permanent marriage before they become parents. A pregnancy at this time would mean a disruption of Mrs. Trubek's professional education. When they are economically and otherwise prepared to have children, the plaintiffs desire to have as many "as may be consistent with their resources, so as to insure adequate provision for each and all of them." The plaintiffs believe that they have a moral responsibility to have only as many children as they feel they can provide with the optimum individual care, attention and devotion. The physician consulted by them has refused to give them information and advice on the manner and means of preventing conception on the ground that such action on his part may be claimed by the defendant, the state's attorney, to constitute a violation of 53-32 and 54-196 of the General Statutes.Justice White in his Griswold concurrence cited this as "family planning" and was open to that sort of thing as compared to in abortion cases. Buxton v. Ullman involved the right of the doctor specifically to counsel his patients and prescribe contraceptives. And, "Poe" (dealt with at that link) were a few married patients with various serious medical conditions with a special need to use contraceptives for health purposes. The court held firm:
It may well be that the use of contraceptives is indicated as the best and safest preventive measure which medical science can offer these plaintiffs. That fact does not make it absolutely necessary for the legislature to accept such a solution in all cases, where there is, as pointed out in the Tileston case (p. 92), another alternative, abstinence from sexual intercourse. We cannot say that the legislature, in weighing the considerations for and against an exception legalizing contraceptive measures in cases such as the ones before us, could not reasonably conclude that, despite the occasional hardship which might result, the greater good would be served by leaving the statutes as they are.And, then we had the Griswold case, which involved not only an attempt for a "declaratory" action [the court in the previous was dismissive of the use of pseudonyms in particular; they would be considered fictional without testimony], Estelle Griswold actually got herself arrested for running the clinic. By now, there was a variety of arguments made including free speech, privacy and substantive due process [the oral argument in Poe v. Ullman focused on that latter, which left some justices wishing things like free speech claims were raised*]. But, the state court did not cover such ground, resting on precedent, noting that they were being asked:
"to consider whether or not in the light of the facts of this case, the current developments in medical, social and religious thought in this area, and the present conditions of American and Connecticut life, modification of the prior opinions of this Court might not `serve justice better.'"Still up to the legislature. The Supreme Court in Griswold v. Connecticut thought otherwise though it did so in a brief opinion that barely touched upon this history. The opinion, unlike the author's previous dissent, did not even partially rely on the free speech issues involved in a case in part about counseling. Yes, the First Amendment was cited, but as a means to express a constitutional right of privacy. Justice Black joined the other three dissenting justices in Poe v. Ullman on the question of there being a case or controversy as to Dr. Buxton as to counseling. This time around he did not find there was a real First Amendment argument (since distribution was involved), but perhaps the majority covering that ground (raised in the briefs though barely touched on during oral argument) might have helped.
(Note that lower court in the later contraceptive case involving distribution at a lecture didn't think much of the First Amendment case either though Justice Douglas again separately relied on it. But, this case involved counseling of patients, not merely use of a contraceptive as a lecture prop.)
It is but a sign of the tip of the iceberg nature of many cases.
===
* There was a brief reference to then still pending clergy cases in the Poe v. Ullman oral argument and Liberty and Sexuality references three ministers starting a lawsuit to protect their right to counsel patients, raising free exercise and free speech claims. But, it doesn't say what happened to the litigation. I found a few references in a pair of articles and a listing of cases while they were still pending. One framed it thusly:
Three additional Connecticut actions brought by Protestant clergymen, to whom marriage counseling is an essential part of their pastoral responsibilities, allege that the Connecticut law infringes their religious freedom under the first amendment to the United States Constitution.This would be a prelude to similar efforts on the abortion front.
But, free speech [which was raised in Griswold] and freedom of religion was not in the complaint. The basic matter was that a threat to life and health required a higher degree of state justification, particularly when it interfered with marriage relations. The Griswold orals covered privacy in general more though the advocate didn't have much time to flesh it out.
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