Wednesday, July 21, 2010

Birth Control in the Connecticut Supreme Court before Griswold

Just Say No: Birth Control in the Connecticut Supreme Court Before Griswold v. Connecticut, one of my first articles, is now on SSRN. I wrote it for a symposium on state constitutional law, and it appeared in a collection edited by Paul Finkelman and Stephen Gottlieb, Toward a Usable Past: Liberty under State Constitutions, and was republished in the Iowa Law Review (1990). The abstract is below.

In the interest of making my work more accessible, I've been updating my SSRN page, so that current, published copies of these other works are now downloadable via SSRN:

The Court and Social Context in Civil Rights History (reviewing Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality)

Who Cares About Courts? Creating a Constituency for Judicial Independence in Africa (reviewing Jennifer Widner, Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa)

Here's the abstract for Just Say No: Birth Control in the Connecticut Supreme Court before Griswold v. Connecticut:
This essay examines the right to use birth control in Connecticut before Griswold v. Connecticut (1965). It is often assumed that the Connecticut birth control ban was not enforced, and consequently did not affect access to birth control in the state. Accordingly, the cases challenging the state statute have been viewed as not real cases or controversies deserving of court attention. This essay demonstrates that this view is erroneous. Connecticut law was enforced against the personnel of birth control clinics for aiding and abetting the use of contraceptives. Enforcement of the statute against those working in clinics kept birth control clinics closed in Connecticut for twenty-five years. The lack of birth control clinics may not have greatly affected middle-class and wealthy people who could afford private medical care, since doctors would often ignore the laws. The lack of clinics primarily harmed lower-income women who needed the free or low-cost services birth control clinics provided. It was the impact of birth control restrictions on the poor that led Dr. C. Lee Buxton, along with Estelle Griswold, to publicly violate the law by opening the clinic that resulted in their arrests, and ultimately in the Supreme Court ruling in Griswold.

Beyond its importance to the history of reproductive rights, this essay illuminates the history of rights under state constitutional law. Until 1965, the United States Supreme Court largely avoided cases involving reproductive rights, with the notable exception of sterilization. Appeals to the Supreme Court in cases involving constitutional challenges to state restrictions on contraceptives were regularly dismissed for want of a substantial federal question or due to lack of standing, so that substantive rulings in birth control cases were confined to the state courts and, on questions of federal law, to the lower federal courts. Because the Supreme Court did not hear these cases, the right to use birth control was determined by state law until 1965, when the Court decided Griswold v. Connecticut. Consequently, an examination of this area of law enables us to see the independent treatment of constitutional rights by one state court without meaningful input from the U.S. Supreme Court.
Photo: Estelle Griswold.