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 womans 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 Borks nomination to the Supreme Court, partly because of Borks 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 Courts privacy doctrine is now greater than ever.
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