1970 meeting of Planned Parenthood. (Photo courtesy of New Haven Museum)
(Opinion) As the U.S. Supreme Court tweaks its attack on Roe v. Wade, I’d like to call to your attention to a stunning episode of New Haven legal history that will also be rendered moot.
To grasp why this is so, I ask you to do a little time traveling.
Imagine now that you are a young married woman living in the Elm City in the early 1960s. You and your husband rent an apartment near downtown, and talk about starting a family.
But you would like to put off pregnancy until you can use your degree in political science to find a paying job or at least volunteer on an election campaign to gain experience.
In one way, your timing in getting the contraceptives you need appears right. Married women in most parts of the country have had legal access to such devices and the new birth control pill.
This the fruition, you are aware, of the movement begun in the early part of the century by Margaret Sanger, founder of Planned Parenthood.
But you also know there are two impenetrable obstacles in New Haven and the rest of Connecticut.
These are the draconian laws introduced in 1879 by State Sen. Phineas Taylor Barnum, the very same P.T. Barnum of circus and “a sucker born every minute” fame.
The statutes, inspired by the federal Comstock Act of 1873 prohibiting “immoral,” “indecent” and “lascivious” behavior, still make it illegal to buy and use contraceptives or even to aid someone in purchasing them.
Because you don’t relish a ride in a cop car from the bedroom to jail, you instead seek a transport that skirts the law.
You’ve heard that a New Haven minister and women’s rights activist, Joan Forsberg, drives a vanload of young women every few weeks to Rye, N.Y., and the Planned Parenthood clinic there.
You take her van ride on two occasions, and are grateful for the chance to do so. But it makes you feel like a criminal on the lam, especially in light of recent developments in the Elm City. Of that, you can recite all the facts.
Estelle Griswold. (Photo courtesy New Haven Museum)
In 1961, Dr. C. Lee Buxton, the chairman of the obstetrics department at Yale Medical School, and Estelle T. Griswold, executive director of Planned Parenthood of Connecticut, established a clinic at 79 Trumbull St., though you never got to go there.
Their work in the eight-room space survived only ten days before the founders were arrested, and the clinic closed. Though the two avoided jail time, each were ordered to pay a $100 fine.
All the young women in your circle find this hard to believe. Imagine, you tell a former classmate: Connecticut’s anti-contraception measures are the strictest in the country, beyond what even Oklahoma or Texas has on the books.
On the other hand, there are people fighting this. Women fighting this. With help from local civil rights attorney Catherine Roraback, Griswold and Buxton filed an appeal with the state Supreme Court. True, that appeal was denied, but they’ve petitioned the U.S. Supreme Court to take up the case, now known as Griswold v. Connecticut.
So, in March 1965, you take a few days off from your position of staff assistant in the New Haven office of U.S. Representative Robert Giaimo, and drive to the nation’s capital to witness the oral arguments.
The building is packed, and you are lucky to find a seat next to a veteran reporter who whispers with glee that even a few of the wives of the justices are in the audience, too. It’s that important.
You decide that Thomas I. Emerson, dean of the Yale Law School, about to argue on behalf of the appellants in front of nine men in robes, certainly looks the part of distinguished attorney, though you wonder why Catherine Roraback, who is sitting next to him, isn’t called the podium.
What does a man, for all of his impressive mane of white hair and his experience working as a federal prosecutor during the New Deal, know of such female intimacies?
On the other hand, you are aware that one of the justices, William O. Douglas, was once Emerson’s professor at Yale Law School. Maybe that’ll help.
On this day, Emerson impresses you, saying to the court that married women (the case is limited to that category) are deprived of due process of law. This, he posits, is a violation of the 14th Amendment, and that, along with help from the First Amendment’s freedom of speech and other Constitution measures, is enough to void the two anti-contraception Connecticut statutes.
He says that this view “touches upon individual rights: the right to protect life and health, the right of advancing scientific knowledge, the right to have children voluntarily …”
As always in such proceedings, the justices often interrupt, seeking clarifications and making legal points to persuade colleagues. Emerson jokes at one juncture that if the justices give him sufficient time, he might actually be able to get to his main argument.
(You can hear his full presentation on a recording here.)
Now, all these years later, you point out that the basic legal problem in Griswold v. Connecticut, the question of a right to privacy, relates to Justice Samuel Alito’s argument today in his leaked draft regarding abortion, and his view that Roe v. Wade was wrongly decided.
Alito says that the right to abortion is not specifically mentioned in the Constitution and also that it hasn’t been traditionally recognized in society. But, as Thomas Emerson was aware in 1965, neither are the rights of individual and marital privacy.
Emerson’s challenge back in 1965 was to convince the justices that the notion of privacy is implied by parts of several amendments to the Constitution. In effect, a “penumbra” of such laws.
You know that this sort of argument runs against the views of originalists like Alito and his conservative colleagues, who are more inclined to read the nation’s sacred document as if they were Biblical literalists who argue that since Leviticus instructs “an eye for an eye, a tooth for a tooth,” we should all become blind and have applesauce for dinner.
Back in 1965 you were overjoyed by the Supreme Court’s decision in the case of Griswold v. Connecticut, when seven of the nine robed men agreed with Emerson, and, with William O. Douglas writing for the majority, wiped out the state’s onerous statutes.
And, eight years later in the Roe v. Wade decision, with its very foundation drawing on Griswold v. Connecticut and its right to privacy, you believed the Dark Ages of Women’s Rights were over.
But now you anticipate a catastrophic ruling by the Supremes, and wonder if your experience was all part of a dream. And if this could lead to other regressive measures, such as overturning the right to gay marriage.
You think of your grandchildren in Arizona and North Carolina, facing climate change, the perils of white supremacy and many other threats. Will they have to set their house alarms to keep cops from hauling them away and charged with first-degree lasciviousness?
Surely that couldn’t happen Connecticut, though. Not in a reliably wise and progressive state. Even though it did, for almost a century.
I am ashamed of NewHaven's connection to the murderous Roe v Wade travesty. Privacy has led to the wholesale slaughter of the innocents on a biblical scale. I'm sure Ms. Griswold had a good excuse story when she met her Maker