Analysis Law and Policy

49 Years After Griswold: A Splintering Legacy

Jessica Mason Pieklo

The Supreme Court's historic Griswold v. Connecticut decision may have legalized contraception use between married couples, but with the Hobby Lobby case, the Roberts Court is poised to take us one giant step backward.

This month marks the 49th anniversary of Griswold v. Connecticut, the landmark Supreme Court decision that ruled states could not criminalize contraception use between married couples.

In a Washington Post article published this March, Walter Dellinger noted that the oral arguments in the 1965 case suggested that, by 21st-century standards, the justices were “either uninformed about contraceptive methods or uncomfortable discussing them.” Dellinger notes that the oral arguments in Griswold “at times verged on incoherence because the justices were embarrassed to discuss methods of contraception” and that, amazingly, during the entire oral argument on a case that made criminal contraception use, not a single method of contraception was named out loud by either the attorneys or any of the justices.

Fast forward nearly 50 years and the Supreme Court is once again considering the question of birth control, this time in the Hobby Lobby case, with the question of whether or not businesses can avoid complying with the contraception benefit in the Affordable Care Act by claiming a religious objection to providing employees insurance coverage for contraception.

I wish I could say that I agree with Dellinger that the arguments in Griswold sound quaint by today’s standards, but with more than 100 cases snaking through the federal courts challenging the contraception benefit, it’s clear that the courts are as uninformed and uncomfortable as ever with contraception and its importance to women’s equality. Plaintiffs in those cases have argued, wrongly, that both the intrauterine device (IUD) and emergency contraception are abortifacients—claims more than one federal appeals court have repeated, despite being scientifically inaccurate.

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During oral arguments in the Hobby Lobby case, Paul Clement, who was representing the craft chain store, spent the majority of his time conflating contraception with abortion, insisting that the Obama administration was “forcing someone else”—good, religious folk, like his clients—to pay for abortion care when they provided health insurance to their employees, an argument teed up specifically to appeal to both Justice Anthony Kennedy and Chief Justice John Roberts. But Solicitor General Donald Verrilli pushed back against this lie. And it is undeniable that the presence of three female justices on the Supreme Court changed the dynamics in the oral arguments in Hobby Lobby from those in Griswold. In fact, Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg showed a mastery of the contraception benefit beyond even the administration’s chief defender of the law.

Signs of progress? Sure. But when measured in the span of almost 50 years, and with media outlets parroting misinformation on contraception and states continuing to try restrict or eliminate its access, just how much progress have we made?

In a sense, it’s fitting that on Griswold‘s anniversary we’re still waiting for a decision from the Roberts Court in the Hobby Lobby case. And with a whole other crop of legal challenges to the contraception mandate brought by religiously affiliated nonprofits also pending in the federal courts, there’s a chance contraception will once again make its way before the Court even once the Hobby Lobby decision is released. But Griswold‘s legacy is not limited to the contraception debate. It was Justice William O. Douglas and the majority of justices in Griswold departing from earlier Supreme Court reasoning that tied privacy rights to specific constitutional provisions, and instead finding that a right to privacy flows from several places in the Constitution to create “zones of privacy”—including fundamental questions of whether or not to have a family—that set the stage for striking down interracial marriage bans and ultimately laid the foundation for today’s marriage equality movement. By comparison, the push for marriage equality has fared much better before the Roberts Court than the push for women’s equality, which brings me back to Dellinger’s Washington Post piece and its title: Contraception as a test of equality.

It’s hard to see a clearer case for contraception as a test for equality than the seemingly splintered legacy of Griswold, the undeniable success of the marriage equality movement, and the continued, vicious attacks on reproductive privacy rights. I suspect that after the Court’s decision in Hobby Lobby later this month, that will only become more apparent.

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