The bad decision that started it all: Griswold at 40

National Review, July 18, 2005 by Robert P. George, David L. Tubbs

FORTY years ago, in Griswold v. Connecticut, the Supreme Court of the United States struck down state laws forbidding the sale, distribution, and use of contraceptives on the basis of a novel constitutional doctrine known as the "right to marital privacy."

At the time, the decision appeared to be harmless. After all, Griswold simply allowed married couples to decide whether to use contraceptives. But the Supreme Court soon transformed the "right to privacy" (the reference to marriage quickly disappeared) into a powerful tool for making public policy. In Eisenstadt v. Baird (1972), the Court changed a right of spouses--justified in Griswold precisely by reference to the importance of marriage--into a right of unmarried adults to buy and use contraceptives. Then, in a move that plunged the United States into a "culture war," the Court ruled in Roe v. Wade and Doe v. Bolton (1973) that this generalized "right to privacy" also encompassed a woman's virtually unrestricted right to have an abortion.

No one doubts that there are true privacy rights in the Constitution, especially in the Fourth Amendment, which protects against unreasonable searches and seizures and ensures that warrants issue only upon a showing of probable cause that a crime has been committed. (Indeed, these rights prevented any kind of aggressive enforcement of the laws struck down in Griswold.) But the justices in Griswold produced a non-text-based and generalized right. "Privacy" functioned as a euphemism for immunity from those public-morals laws deemed by the justices to reflect benighted moral views.

The privacy decisions that sprang from Griswold have been widely criticized, and in the last 20 years there have been two notable efforts to silence and stigmatize that criticism. The first occurred in 1987, when a coalition of liberal interest groups helped to scotch Judge Robert Bork's nomination to the Supreme Court, partly because of Bork's misgivings about this novel doctrine. The second occurred in 1992, when the Supreme Court decided Planned Parenthood v. Casey, which reaffirmed the "central holding" of Roe v. Wade.

Neither of these efforts succeeded. To this day, millions of Americans cannot accept Roe v. Wade as constitutionally legitimate. And thanks to recent developments, public suspicion of the Court's "privacy" doctrine is now greater than ever.

Two years ago, in Lawrence v. Texas, the Supreme Court pushed the doctrine into new territory by overruling Bowers v. Hardwick (1986), a decision that had upheld a state's authority to prohibit homosexual sodomy. But in Lawrence, Justice Anthony Kennedy provocatively remarked that Bowers was wrong the day it was decided. Criticism of the ruling in Lawrence intensified a few months later when the supreme judicial court of Massachusetts promulgated a right to same-sex marriage in that state. In Goodridge v. Department of Public Health (2003), the court cited Lawrence to support this newly minted right. It evidently mattered little to these judges that the majority opinion in Lawrence expressly denied that the case involved the issue of marriage.

As the courts push the "privacy" doctrine further and further, public criticism keeps pace. Griswold, however, has received little attention. Even harsh critics of Roe and Lawrence are loath to say that Griswold was wrongly decided. Most of those who worry about the judicial abuse of the right to privacy do not want or expect the Supreme Court to revisit the case. Yet the cogency of any serious critique of "privacy" may depend on the willingness to reexamine the roots of the doctrine in Griswold.

Consider abortion. Conceding the correctness of Griswold gives a huge advantage to the defenders of Roe and Casey. They benefit because so many influential jurists and scholars say that the "inner logic" of the contraception cases must yield something like Roe. Outsiders may regard this argument with skepticism, but its purpose is clear: It tries to smooth the road from Griswold to Eisenstadt to Roe--and beyond.

But one point is rarely mentioned. Even though Griswold was less consequential than Roe, the two cases suffer from similar flaws. The many shortcomings of Griswold are less well known, because the case is enveloped in myths.

In American law schools, decisions such as Roe, Casey, and Lawrence are widely praised--not because of their legal merits (which are dubious), but because they comport with the ideology of "lifestyle liberalism" that enjoys hegemony there. Consequently, since 1973 most legal scholars have had no incentive to reassess Griswold. But if Griswold was wrongly decided, Roe--intellectually shaky on any account--loses even the meager jurisprudential support on which it rests.

The lack of scholarly engagement with Griswold partly explains the myths now surrounding it. Exposing those myths further undermines the arguments for a generalized right to privacy.

Myth #1: The Connecticut laws were "purposeless restraints," serving no social interest.

Supreme Court justice David Souter is one of several jurists to make this assertion. The confusion arises from Griswold, whose majority opinion nowhere identifies a legislative purpose.