The tragedy of privacy


In 1965, the state of Connecticut used an 1879 law to arrest and fine Estelle Griswold and Dr. C. Lee Buxton as accessories to providing illegal contraceptives. The former was the executive director of the Planned Parenthood League of Connecticut, and the latter was a medical doctor and professor at Yale Medical School. They were each fined $100. The case made it all the way to the Supreme Court.

Justice William O. Douglas wrote the majority opinion in Griswold v. Connecticut. The justices, in a 7-2 decision, argued that the same “penumbras” that protect free speech in modes which did not exist at the writing of the Bill of Rights also apply to a right to privacy within a marriage.

By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers,319 U. S. 141,  319 U. S. 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff,344 U. S. 183,  344 U. S. 195) -- indeed, the freedom of the entire university community.  Sweezy v. New Hampshire,354 U. S. 234,  354 U. S. 249-250,  354 U. S. 261-263; Barenblatt v. United States,360 U. S. 109,  360 U. S. 112Baggett v. Bullitt,377 U. S. 360,  377 U. S. 369. Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

The argument was that the “various guarantees” of the Bill of Rights “have penumbras, formed by emanations from those guarantees.” In this, Justice Douglas and the others formed the projector which took the “right to be left alone” under the Fourth Amendment and turned it into an iron umbrella of privacy within personal relationships such as marriage.

In concurring opinions, Chief Justice Earn Warren, along with Justices Brennan and Goldberg wrote (excerpted):

I agree with the Court that Connecticut's birth control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment… I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted, and that it embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution…

The right of privacy extended to the fact that within a marriage, a couple has a right to not have a child, and that right gives the relationship special protection to seek outside helps (like contraceptives), so that state regulation of those contraceptives is a violation of Constitutional rights of privacy.

In his dissent, Justice Stewart wrote that he thought the Connecticut law was “uncommonly silly,” but that the Court had no choice but to find it constitutional.

In this one decision, the clash between the People’s right, through elected representatives in the legislature, to create and enforce such laws as they deem necessary to society’s benefit, versus certain unalienable rights that the government does not have power on which to tread, is brightly illuminated.

The tragedy of this ruling is that the government has been constrained from preserving the very rights of those who seek the same privacy (e.g. “to be left alone”) in their deeply held religious and beliefs of conscience, versus a state so ready to promote and advance the privacy rights of others.

In Roe v. Wade, the Supreme Court specifically argued that the right of privacy established by the precedent of Griswold v. Connecticut, based on penumbras and emanations of the unalienable rights enumerated in the Bill of Rights, extended to the right to an abortion, a positive right—or rather constraining the government’s ability to regulate that activity.

The one point that case established is that regardless of the definition of “life” and its beginning, a fetus was not a “person” as protected by constitutional rights. It was, rather, a part, or property of the person in whom it lived. The conflict between the state’s (therefore the People’s) right to regulate society and protect the innocent continued through several other cases, notably Casey v. Planned Parenthood of Pennsylvania, and Gonzales v. Carhart, which upheld the federal ban on the savage practice of “partial birth abortions.”

Though the incidence of abortions has fallen over the past 20 years, thankfully and to some extent through the efforts of pregnancy crisis centers, the “privacy” argument (“my body, my choice”) has been wielded again and again as a cudgel to suppress other choices for women seeking advice and support in unplanned pregnancies.

Notably, California’s law requiring crisis pregnancy centers to publicly disclose, and prominently post, that they are not abortion providers, and to require them via compelled speech to refer patients to abortion centers, was struck down in 2018 by the Roberts Court in a 5-4 decision.

California Attorney General Xavier Becerra in a statement called the Supreme Court’s decision “unfortunate” and pledged to continue working “to ensure that Californians receive accurate information about their healthcare options.”

Xavier Becerra is President Biden’s Secretary of Health and Human Services. Vice President Kamala Harris has, as a presidential candidate, publicly railed against state regulation of abortion.

As a senator, she co-sponsored the Women’s Health Protection Act.

The bill would establish "federal statutory rights for providers to provide and patients to receive abortion care free from medically unnecessary restrictions and bans," according to the Guttmacher Institute. It would also protect providers from limitations put in place by antiabortion lawmakers, such as pre-viability bans or mandatory medical procedures.

The right of people, within a marriage, to live free from government intrusion, has morphed from a 1965 decision overturning a “silly law” to a positive right for government to intrude into the will of society to limit a morally bankrupt procedure which exists only for the benefit of those who believe a fetus is merely property or a body part to be sold or experimented on.

Given the choice between silly laws that may violate my penumbras and emanations of privacy, versus giving progressive moral busybodies a hammer, making every other right except abortion a nail, I’ll take the silly laws.

Overturning the $100 fine levied on Estelle Griswold and Dr. C. Lee Buxton in the name of privacy has turned out to be a very great tragedy.


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