Griswold v. Connecticut (1965) is one of the most important freedom fountains in Con-law as it enunciated a new right of privacy protecting individuals in their power to control their own reproductive activity and intimate relations.
Griswold was about contraceptive. Connecticut had a law making it a crime to sell contraceptives or for doctors and other counselors to advise on their use. A prominent doctor and the head of the local Planned Parenthood Association chapter decided to challenge the Connecticut law by breaking it publicly so that they'd have to be prosecuted. The resulting case would be the vehicle for mounting a challenge in the U.S. Supreme Court.
Thomas Emerson, a professor at Yale, argued the case and relied on two cases from after the First World War authored by the conservative, racist, and anti-Semitic Justice McReynolds, about whom a contemporaneous biography by his law clerk in 1937 has recently been published. The man was so conservative that by today's lights he was libertarian. There was a great deal of anti-German sentiment following the war with Germany which had practiced unrestricted submarine warfare against neutral shipping in a long ordeal that wiped out and impoverished a generation of young men in Europe, in Germany, England and France especially. When Germany sank the Lusitania, a British passenger carrying American tourists (and hidden munitions kept secret in the U.S. for decades, that is until recently), public opinion readied itself for war under Woodrow Wilson, who had campaigned to keep the U.S. out of the war in Europe. A Serb had assassinated the Austro-Hungarian Archduke, Ferdinand, starting the war as the major European powers had pledged to go to war in aid of one another if attacked. When Germany conquered Belgium to attack France, Britain entered to fight Germany, resulting in trench warfare, gas warfare, and entry of the U.S. when Germany was caught in the Zimmerman Telegram of plotting to get Mexico to invade the U.S.
Some states passed anti-German legislation, such as a prohibition against parents sending children to German language school and Catholic school, as many of German descent were Catholic. The cases are Meyers v. Nebraska and Pierce v. Society of Sisters, 1923 and 1924.
With Justice McReynolds writing, the Court held that the power to decide how to raise children belonged to the parents, not the neighbors, acting through legislatures or government. Parents had the final say, not government. Parents were sovereign as to intimate family decisions. This is what Emerson argued to the Supreme Court in Griswold (1965). Justice William O. Douglas, a liberal New Dealer appointed by FDR was receptive to the argument and carved the right of privacy over ones own intimate activity into a strong constitutional right that has resonated and grown in influence with the American people in the four decades since. He claimed that the right existed all along in the shadows and radiations of existing amendments ("penumbras and emanations" was his memorable phrase) such as prohibition of unreasonable search and seizure, quartering of troops, compelled self-incrimination, and reserved rights (3rd, 4th, 5th & 9th Amds., respectively).
Out of Griswold grew Roe, Lawrence, and many other decisions protecting you in your choice of life partner, intimate relations, and control over whether and when you wish to become a parent and accept the responsibility of raising a child or children.
Over the weekend I spoke with a woman whose parents came to the U.S. from Germany after WWII. Her grandmother had eight children but died self-aborting the ninth. Her husband had told her no more children and she knew they couldn't support another. The woman I spoke with said she told her own daughters that if they got pregnant they were on their own, would have to move out, go on welfare, and live in places they wouldn't like, as she had become a single mother and was unable to take on the burden of unwanted children. None of them did and her family is strongly pro-choice, she says. They've heard the story of Grossmutter.
Below is an article from a Connecticut newspaper referring to the significance of Griswold v. Connecticut (1965) based on an interview with the lawyer who assisted Thomas Emerson. When I read of Emerson's reliance on Meyers and Pierce, I wondered how he came to know those cases, only two out of thousands decided by the Court. Then I realized he lived through the era in which they were decided, and as a law professor at Yale, would have retained a recognition as to their significance. He was also a contemporary of Justice Douglas, who had taught at Yale and Columbia. Emerson must've known Douglas well, certainly well enough to make an argument that would have an impact on him.
Emerson's big problem would be to get the Court to become "judicial activists" again. A stake had been driven through the heart of the conservative judicial activism that had been based on a belief in laissez-faire dog-eat-dog capitalism during the so-called Lochner Era (1905 - 1937). That ended with the Depression after years of liberal activism led by Justice Felix Frankfurter and others, who urged judicial restraint. It would be a major shift for the liberal Warren court in 1965 to pick up the activist mantle after the liberals, had so long decried conservative activism.
Today, of course, the shoe is on the other foot, with conservative Republicans in the driver's seat, and Pres. Bush, playing to his conservative base, is seeking to line up his ducks to pack the Court with judicial activists in the other direction, as witness Pamela Owen, William Pryor, and Janice Rogers Brown appointed to federal appeals courts, ready for elevation when a Supreme Court vacancy occurs, expected soon as Chief Justice Rehnquist, 80, has throat cancer. This is what the recent filibuster fight was about.