Griswold Again

The Dobbs majority (joined by Thomas and Kavanugh in concurrence though Thomas does want to go further) assures us that Roe v. Wade is special. The dividing line?

its effect on what Roe termed “potential life.”

Yes, the opinion does note that the contraceptives use ban at stake in Griswold was an "outlier" (the state pushed back on exactly how true that was). Nonetheless, the majority attacks the right to privacy too, at the very least as it is covered by Griswold, Roe, and Casey. Thus, Griswold's reasoning is attacked:

Since Griswold, the Court, perhaps recognizing the facial absurdity of Griswold’s penumbral argument, has characterized the decision as one rooted in substantive due process.

We are told that it a right to choose an abortion is not saved because it is somehow connected to family life and marriage since on a "a high level of generality, could license fundamental rights to illicit drug use, prostitution." Again, that is the sort of thing cited when contraceptives and so called "sodomy" (a crude term for non-vaginal intercourse) were involved.  

An opinion that purports to show -- contra how many historians frame it -- that abortion was never really seen as a legal right should not find it too hard to show that open access to contraceptives is not based in "deeply rooted in history."  

How about the potential life thing?

We are already getting evidence that a ban on abortion ("abortion") can lead to blocking what many deem birth control.  This news story shows how the IUD (the most reliable birth control method) is at risk. The Hobby Lobby case also shows how what people do not really deem "abortion" can be so labeled, including morning after pills.  And, on a wider level, the Catholic Church very well thinks birth control "involves" potential life.

Anyway, is there some "facial absurdity" to Griswold's argument?  The idea (to cite Holmes) that the Fourth Amendment's "penumbra" involves a broad "right to privacy" is often seen as arising in significant part from Justice Brandeis' dissent in Olmstead v. United States.  

As noted by Griswold, various Fourth Amendment cases speak of some "right to privacy." The footnote cites a 18th Century case protecting "sanctity of a man's home and the privacies of life."  Justice Harlan, whose Poe v. Ullman dissent was accepted in time as basically official, was also cited by a concurrence citing the same principle:

Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. . . . Of this whole `private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations.

Harlan also wrote an opinion cited in Griswold holding that freedom of association has a "close nexus between the freedoms of speech and assembly," including the privacy of one's associations.  The opinion cites a few other cases (and writings) that show a right to "privacy" was recognized.  Sometimes, it was more of a general "liberty" (such as to raise one's children), but sometimes it was in cases involving specific rights.  

I do not see the 'facial absurdity" of the idea the same applies with other enumerated rights, privacy has a "close nexus" with them.  A bit of research can show how self-incrimination is part of the whole here (up to the of torture to force an invasion of one's conscience here). The same can be said about a right to conscience (First Amendment) though the opinion itself (as compared to the briefing) does not really address that.  

Justice Douglas in his Poe. v. Ullman dissent does not limit himself to some "penumbra" (though he used the terminology pre-Griswold), arguing that privacy generally is a necessary part of a free people.  He noted the importance of privacy in an earlier dissent, showing in part the wider First Amendment aspects involved:

The First Amendment in its respect for the conscience of the individual honors the sanctity of thought and belief. To think as one chooses, to believe what one wishes are important aspects of the constitutional right to be let alone.

A true respect of this principle, including as expressed in our history and traditions (and the text of the First Amendment), is not to draw a line among privacy precedents (or "liberty" precedents) at some greatly disputed, heavily mixed with religious belief, matter of where life begins.  

I do not think it absurd, especially as a means to try to practice (a bit ironically here) judicial restraint, to fit a right to privacy regarding birth control and general reproductive choices as a a wider application of enumerated rights.  

Melissa Murray in an article, for instance, reminds of a lesser known couple in the birth control litigation who wished to use it to secure a certain path as a couple.  Life choices here, association choices, can very well turn on not having the woman get pregnant.  The same applies to a person's equal citizenship role.  

I think it is probably true that reproductive liberty here is not merely a matter of fully protecting enumerated rights.  The enumerated rights do assume a wider range of freedom.  Nonetheless, it is not necessary or ideal to rest alone on them.  The Ninth Amendment and so on make this appropriate as well. 

(The usual framing of "matters relating to marriage, procreation, contraception, family relationships, and childrearing and education" is a mix of Bill of Rights and a wider understanding of freedom that grows out of history.)  

The "right to privacy" is a label that reflects a range of things. As summarized by one person (same cite):

The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion."

The contours here are determined case by case, in and outside the courts.  Justice Harlan's concurrence in Griswold is basically correct that the true restraint is up the judge, not some fantasy shibboleth (Mark Tushnet) like "history or tradition."  Who isn't in some way guided by that?  And, why is "potential life" separate from the rest here?  

Again, it is not like the Catholic Church admitted that contraceptives did not touch upon that.  And, how much of an "outlier" really was Connecticut?  For instance, regular controversies involving pressuring people to be sterilized continued at least into the 1970s.  Ironically, then, the military pressured women to get abortions.  

Is personal control over one's reproductive life so hard to separate from public sale of sexual services?  Years back, I imagined a right to prostitution.  You can craft one.  But, there is a pretty easy line drawn in current jurisprudence.  The same applies to regulation of the sale of illicit drugs though again cases do arise involving drugs, including lines drawn when you are forced to take it even to protect born humans.  

We past fifty years and are approaching sixty for Griswold v. Connecticut.  And, it is not yet quite secure, even though its popularity is so high that even Alito has to try to -- up to a point -- assure us (don't believe it) that Dobbs will not threaten its basic core and surely its principled wider application.