Griswold and the Public Dimension of the Right to Privacy

Fifty years ago, the Court in Griswold v. Connecticut invalidated Connecticut’s ban on birth control. The various opinions in Griswold were in many ways products of their time. For instance, none of the Justices focused on the implications of the Connecticut law for women’s equality. Constitutional sex discrimination law had yet to be developed—and the National Organization for Women had yet to be founded—at the time Griswold was decided, so the ways in which the state’s regulation of contraception affected women’s social and economic roles failed to attract the Court’s notice. It is only over time, and thanks in significant part to the women’s movement, that courts have begun to recognize the gender dimension of questions involving reproductive health care. While the passage of time has revealed aspects of the question in Griswold that were not apparent to the Justices half a century ago, it has also obscured constitutional frames that were more visible in the 1960s than they are now. This Essay focuses on one such frame: that of poverty, or social and economic disadvantage. Of course, Americans today know in some sense that access to birth control is deeply intertwined with class, but concerns of this kind surface only rarely in contemporary legal and political discourse about Griswold. This is largely because of the way Griswold has been categorized and canonized. Griswold helped give rise to Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and the whole line of modern reproductive rights cases, and it has, to