CHAPTER THREE

One Vote Shy: Estelle Griswold, Fowler Harper, and the U.S. Supreme Court, 1954–1961

Estelle Trebert Griswold had mixed feelings about Molly Milmine’s suggestion that she consider becoming executive director of Connecticut Planned Parenthood. On one hand, as she later explained, “I needed a job very desperately,” for while being executive secretary of the New Haven Human Relations Council might seem professionally significant to Milmine and others, it was no longer a paying position; there simply was no money. On the other—well, Estelle Griswold did not feel she should explain that to Molly Milmine either.

Birth control was something Stelle Griswold of course had heard about; she and her husband, Dick, both Connecticut natives, had moved back to the state three years earlier. But birth control was not something Stelle Griswold knew very much about; in fact, as she explained it later, at the time of her first conversation with Molly Milmine, Stelle Griswold had never seen a diaphragm, did not know what one was, and was not sure what the word really meant.

Having been born Roman Catholic, in Hartford, in June 1900, was not the reason. Although her father, Frank, a toolmaker, was not especially religious, her mother, Jennie Church Trebert, was Catholic, and even decades later Stelle would acknowledge that “I’m still considered a Catholic on the rolls.” Stelle had thought her parents had “a very strange marriage,” for her father was “a very volatile person” while her mother was “very placid.” There had been two older sons, only one of whom, Raymond, was still living when Stelle was born, and church-going never played a significant role in Stelle’s youth. She attended the Hartford public schools, skipping both the fourth and seventh grades, and then Hartford High School, where she later said she was “kind of a tom boy” who had been suspended more than once for playing hookey and recruiting boys to do the same. Many of Stelle’s acquaintances, like her friend Hilda Crosby, who also graduated in 1920, came from somewhat better-off families, and most of them, unlike Stelle, went on to college. “I was very upset,” she recalled years later, “when they all went to college and there was no money nor interest on the part of my parents.”

Stelle wanted to be a singer. “She had a beautiful contralto voice,” Hilda Crosby Standish later remembered, and for three years Stelle attended Hartford’s Hartt School of Music, rooming there and working in a bank to support herself More than once, she later said, she went for medical checkups to Dr. Thomas N. Hepburn, who lived near Stelle’s grandmother and whose wife was the well-known suffragist. Then, in 1922, without ever previously having left greater Hartford, she defied her family’s wishes and simply moved to Paris. Stelle got an office job as a bookkeeper, started singing at the American Cathedral, and quickly learned colloquial French. “I can swear in French with the best taxi driver there is,” she later boasted. She caught tuberculosis, spent some time in Nice, became engaged to a playwright, and ended up back in another office job in Paris.

Then word reached Stelle that her mother was extremely ill, and reluctantly she returned to Hartford. She took a job in a bank, and first her father, and then her mother, passed away. Stelle went to New York to audition for singing jobs, was sent to Chicago for a position there, traveled from city to city singing with a show group for six months, and then ended up back in Hartford, working as a secretary to a gentleman who was the Belgian consul for New England. In Hartford she remet Richard Whitmore Griswold, two years her senior, whom she had known at Hartford High School before he had gone off to Yale and to brief service in World War I. Dick Griswold had had a series of advertising jobs in New York and New England, and had unsuccessfully tried to start an agency of his own in Hartford. By the fall of 1927 Stelle and Dick had decided to marry, and Dick took a salaried job with the Guardian Life Insurance Company in New York. They were married on October 20 at the Cathedral of St. John the Divine, with Hilda Crosby and other Hartford friends in attendance, and Stelle lined up various radio singing jobs while Dick commuted into the city from their home in Mount Vernon. She and her singing tutor took a long trip to France, but an illness of Dick’s forced Stelle to return home prematurely.

Early in 1935 Guardian Life transferred Dick Griswold from New York to Washington. Stelle’s singing tutor died, and Stelle gave up her idea of a career in music. After an illness of her own, Stelle ended up working as an office volunteer for her own doctor, and started taking courses at George Washington University toward a certificate as a medical technologist. That developed into a full-time job at GWU, and when Dick was called to active duty in Washington in Naval Intelligence in the fall of 1941, Stelle continued to work as a lab instructor at George Washington.

Immediately upon the fall of Berlin in 1945, Dick Griswold was dispatched there to take charge of “investigative teams” under the rubric of the U.S. State Department’s Office of Political Affairs. Stelle went first to London, and then in late 1945 obtained a refugee resettlement job in Holland with the United Nations Relief and Rehabilitation Agency. Some months later Stelle was shifted to Frankfurt, then to Munich, and then Bremen, while Dick eventually was moved to Bremerhaven. By 1947 Stelle’s resettlement work was under the aegis of the American Christian Committee for Refugees, which in early 1948 was absorbed by Church World Service (CWS), a part of the World Council of Churches. Much of Stelle’s work involved helping people from eastern Europe relocate to South America, and Stelle herself endured a memorable but unpleasant month-long crossing of the Atlantic to Argentina on an overcrowded ship.

In December 1950 Estelle returned to the United States, working for CWS in New York and commuting on weekends up to Connecticut, where Dick already had bought a house near New London. In mid-1951, tired of both the CWS bureaucracy and the long weekly commute, Estelle took the job with the New Haven Human Relations Council, Dick shifted his advertising work to New Haven, and they purchased the attractive town house at 40 Trumbull Street. Two years later, at Thanksgiving 1953, with the Human Relations Council out of money, Dick and Stelle were still there, and were eager to remain.1

Molly Milmine was extremely impressed by her first long conversation with Estelle Griswold. “Her qualifications are perfect,” Milmine told Molly Cunningham, and other PPLC officers agreed “that there is no point to look further.” Stelle had led Milmine to believe that she “had two other offers which may get her away from us,” but Milmine hoped to convene the PPLC board by early the next week so that a formal job offer could be authorized.

As Estelle Griswold pondered whether to accept the forthcoming offer, she thought of one old friend, someone she had not seen in some years, who certainly could offer some knowledgeable advice—Hilda Crosby Standish. Stelle knew that Hilda once had been very active in the Connecticut League; indeed, perhaps the last time Stelle actually had seen Hilda was sometime in the late 1930s, when Hilda had told Stelle about how much she enjoyed being medical director of the Hartford clinic. “I met her on a train one day,” Stelle recalled, “and she told me what she was doing. I wasn’t interested. It just left me cold. I wanted children and hadn’t been able to have them.”

Stelle in 1953 was not going to raise that with Hilda, or with Milmine, but she did want to hear Hilda’s views on PPLC, and so after an initial phone call, Stelle drove up to Hartford to visit her old high school classmate. Hilda Standish had been busy raising her own family, and she thought Connecticut Planned Parenthood in 1953 was but a dim shadow of what the league had been fifteen years earlier in the era of Kit Hepburn and Sallie Pease. “It’s practically dead,” she told Stelle after retracing some of the earlier history. “If you really want to work your head off and get it above ground and going again, there’s no better place to work,” but the odds on making it a success were very long indeed. But Estelle, Hilda Standish later remembered in describing that conversation, was someone “for whom that was a real challenge.” “She was that type of person; that was just the thing that set her off.” “I thought if anybody could do it, Stelle could,” because “she always had her own ideas,” and “she got things done … like Mrs. Hepburn.”

Within two or three days of her visit to Hilda Standish, Estelle Griswold received Molly Milmine’s letter formally stating that the PPLC board on December 8 had voted unanimously to offer her the position of executive director, starting January 1, at an annual salary of five thousand forty dollars. The board, Milmine said, had been extremely impressed by her “phenomenally interesting experience.” Stelle, particularly affected by what was undeniably “a very good salary” offer, paused only two days before accepting. “I didn’t know a thing about it,” she later remembered, but it was too good, too convenient, and too challenging to imagine turning down. She was “honored and pleased” and “happy to accept,” Estelle wrote Milmine. “Under your leadership and guidance I hope to make a real contribution.”2

Being such a close and immediate neighbor offered Estelle Griswold an easy excuse for beginning to familiarize herself with PPLC’s office and programs even before she officially went on the payroll. A mid-January board meeting at which Estelle would formally be introduced was snowed out, but Molly Milmine brought her quickly up to speed about the present status of the long-delayed possibility that Bruce Manternach would file a court suit on behalf of the northwestern Connecticut woman who had been recommended by Jo Evarts. The patient remained ready and willing, but wanted assurance, simply in light of her husband’s employment at a prep school with a potentially troublesome headmaster, that a case could be filed and taken forward without her actual name having to appear in any of the public papers. Milmine was hopeful, but Manternach immediately replied that that would not be possible: “she will have to be a plaintiff and her name will have to be used in the title of the action.” When Milmine passed along that unhappy news, the result was just what she had expected. “Our Kent witness has folded up,” Milmine told Manternach—“fear for her husband’s position and the reaction of his chief.” “I find it discouraging to have to wait so long to find someone, but I can easily sympathize with them for not longing for the inevitable publicity.”3

By early February Estelle Griswold was getting fully acclimated. On February 4 she and Jennie Heiser attended a Yale School of Public Health seminar on planned parenthood that featured a Yale gynecologist, Dr. Luther Musselman, and an outspoken professor from the Yale Law School, Fowler V. Harper, whose wife Miriam held the social work position at Yale’s marriage consultation service that was subsidized by PPLC. Finances were a serious concern, Estelle told the board members when she finally met them on February 9, for in January the organization had spent nineteen hundred dollars while taking in only three hundred dollars. She already was attending meetings of local PPLC supporters in Norwalk, New Canaan, Darien, and Hartford, and in early March Estelle told the board that those visits, along with a thorough review of PPLC’s files and an introductory visit to PPFA in New York, had convinced her that much more outreach was needed. PPLC’s program, she stressed, “must stem from locals, not be superimposed” from above. The organization “must reach and represent not only a small intellectual group”—namely the upper-middle class people who were so well-represented on PPLC’s board—“but become a mass movement.”⁴

Molly Milmine continued to hope that they could find a willing and appropriate plaintiff for a test case, but the spring months passed without progress. The new director of the Yale infertility clinic that PPLC had long subsidized, Dr. C. Lee Buxton, introduced himself and inquired about increased funding, but a commitment already had been made to try to channel additional dollars into the marriage consultation service. PPLC’s annual meeting, on May 18, agreed that a 1955 legislative effort no doubt would be mounted, and Estelle Griswold, in her most extensive remarks so far, reminded everyone that the planned parenthood movement, both in Connecticut and nationally, would have to enlarge and expand if it was to succeed. “For thirty-seven years the upper upper and upper middle classes have been our support, but it is only the mass of people that can swing the vote.” Additionally, PPLC’s need for ethnic and economic diversity was also clear. The departing Jennie Heiser’s financial job would be filled part time by a young black woman, Frances McCoy, whom Estelle had just recruited, but more was needed, as everyone who had seen that morning’s headlines—on the momentous U.S. Supreme Court school desegregation decision in Brown v. Board of Education—ought to realize. “We must show active interest in better housing, employment, good schools, and minority rights as related to our problem,” Estelle insisted. Molly Milmine, in her own remarks, went more than slightly out of her way to underline what an energizing and transformative effect Estelle Griswold already was having on Connecticut Planned Parenthood:

She has brought us new interests, new connections, and a new eye to our problems. She, in the five months she has been with us, has already brought us new ideas, new thinking, and new friends and affiliations. She admits to no experience with legislative or political activities, but at the rate she has caught up with us already, I see no reason why she cannot do almost anything. We are very fortunate to have been able to gain her interest and her wide experience.5

The summer of 1954 witnessed a minor stir over a new requirement adopted by Connecticut’s Commissioner of Food and Drugs, who had regulatory authority over pharmacists, that druggists should dispense diaphragms to women only upon presentation of a written prescription from an M.D. Some private doctors were reluctant to put their names on such written documents, and some druggists were perturbed that certain private physicians were simply purchasing and then supplying diaphragms themselves, thus leaving pharmacists out of the business. After much private uncertainty, the matter was resolved in September when the commissioner privately circulated a letter stating that “there is no reason why vaginal diaphragms may not be prescribed or ordered by a physician and such order filled by a pharmacist.… Such order may be given orally or in writing.”⁶

Even by mid-1954 Estelle Griswold believed that it would be some time before PPLC would be organizationally strong enough to win the legalization battle that still lay ahead. “We have a long way to go,” she lectured the board in one report, “before we make a real impact on the public.” “It is somewhat discouraging at times,” she allowed to one PPFA staffer, “but I am convinced that with a little patience, hard work,” and “good counsel,” that matters would soon improve. “If we keep in mind the work,” she told one discouraged PPLC supporter, “that gave us our Constitution, the Emancipation Proclamation, the U.N., votes for women and many other privileges that we accept for granted today, we should continue to work for our cause. We may not have ‘success in our time,’ but we may help to achieve it for future generations.”7

By the fall of 1954, with the 1955 legislative session on the horizon, PPLC’s financial picture had modestly improved. Fran McCoy moved from part-time to full-time work, and when Dr. Buxton met with the board to ask for an additional three or four thousand dollars for the infertility clinic in 1955, the request was eventually approved. Two new part-time employees, secretary Anita Beloff and publicity director Ellen Switzer, also joined the staff, and an increased number of public meetings—including one in New Haven featuring Reverend C. Lawson Willard and law professor Fowler V. Harper—began to be held across the state. The November election results were unsatisfying, with a Democratic majority of twenty state senators in the offing, but Molly Milmine continued to hope that they might yet discover some qualified female patient who would be a willing test case plaintiff.⁸

In late January both a doctors’ bill and a repeal measure were introduced in the 1955 Connecticut legislature at PPLC’s behest. Press observers forecast “certain defeat” for both proposals even well in advance of the April 20 hearing, at which Reverend Willard and Dr. Hilda Crosby Standish led the proponents, with another M.D. reading a statement on behalf of a busy Dr. C. Lee Buxton. The opponents were managed once again by diocesan spokesman Joseph P. Cooney, who included a personal attack on Hilda Standish in his remarks, alleging that she was “well known” as an advisory board member of the Euthanasia Society. Several opposing legislators offered defenses of “the laws of God,” and one opposing doctor warned that PPLC “is a small, local part of a large, well-financed international movement” that was not further identified, but by previous years’ standards, the 1955 hearing was relatively tame.⁹

On May 3 the Public Health and Safety Committee on voice votes overwhelmingly approved both the repeal measure and the doctors’ bill. Two weeks later both bills came to the house floor, with opponents monopolizing much of the debate. One Bridgeport representative alleged that the repeal measure could “be interpreted as legalizing abortion,” and a Plainfield member complained that the trouble with the bill’s proponents is that “they want to play, but they don’t want to pay,” but both the doctors’ bill, by a margin of 150 to 91, and the repeal measure, by a vote of 132 to 91, passed easily. On May 23, however, the senate rejected both bills on voice votes with hardly any debate, and the 1955 legislative effort to legalize birth control came to a quick and quiet end.10

After the 1955 session, PPLC realized more clearly than ever before that there simply would never be a way to get any birth control bill through the state senate in the absence of a decisive Republican majority. Democratic Party chairman John Bailey, PPLC’s officers told the PPLC annual meeting, “has become so powerful that the Bishop no longer needs to watch over the Senate on this bill.” The party chairman, although of course not a member of the senate, attended each day’s private caucus of Democratic senators, and as one freshman Democrat later explained, Bailey’s “ability to help or restrain the ambition of the aspiring politician plays no insignificant role” in ensuring that not a single Democratic senator would step out of line on any bill about which Bailey had a decided preference.

Estelle Griswold appreciated the partisan dynamics, and was trying to channel more and more PPLC effort into building groups of local supporters all across the state, especially in the eastern half of Connecticut, where PPLC never had had any significant presence. Estelle herself had attended and spoken at approximately seventy local PPLC meetings of one sort of another in just her first five months on the job, and now, with Molly Milmine stepping down as president after six years, Estelle hoped to begin drawing a new wave of volunteers into the organization. The new president, Claudia McGinley of New Canaan, fully agreed, and later explained that it was largely because of Estelle Griswold’s vitality and dynamism that she had agreed to accept the presidency. One of McGinley’s first new moves was to persuade Dr. Lee Buxton to become chairman of a revived medical advisory committee, and Buxton did so only after endorsing Estelle Griswold’s view that wider political organizing, rather than professional lobbying, would be the only way to prevail: “if the people of the State through their Legislature, do not want to pass the legislation which the League advocates, the medical profession as such is not the organization to try to put it across.”¹¹

By early June Estelle for the first time was turning her own attention toward test case possibilities, and a review of all the prior years’ unproductive correspondence convinced her that the league’s remaining relationship with both John Riege and Bruce Manternach, if any, needed immediate review. Estelle went to New York for an introductory chat with Harriet Pilpel and a similar discussion with Patrick Malin, the executive director of the American Civil Liberties Union (ACLU). Estelle concluded that a functioning legal advisory committee had to be revived, and by early September both she and Claudia McGinley began meeting with Yale Law School professors Fowler Harper and Ralph S. Brown. A fund-raising shortfall led to the termination of PPLC’s support for Miriam Harper’s marriage counseling position, but Estelle and McGinley started thinking about a brand-new initiative, namely open and publicly advertised PPLC referrals for poorer women desiring diaphragm fittings to the birth control clinic that Planned Parenthood of Eastern Westchester operated in Port Chester, New York, just across the Connecticut state line from Greenwich. The Port Chester clinic already quietly offered reduced-rate services to Connecticut residents, and in early November Griswold and McGinley held their first meeting with the Port Chester directors to discuss an open and official referral program.12

On December 1 PPLC sponsored a public forum at Yale Medical School that featured both Fowler Harper and Lee Buxton, and by Christmastime Griswold and McGinley’s referral plan had received official approval from PPFA in New York. In mid-January Estelle distributed a proposal recommending formal adoption of a public referral service, and noting that if any Connecticut authorities sought to challenge the policy, PPLC in conjunction with its Yale advisors and the ACLU would be able to defend the program on First Amendment freedom of speech grounds. An office would be opened in Norwalk to coordinate appointments and transportation to the Port Chester clinic; an additional benefit of such a public outreach effort might be the identification of an ideal patient for a test case. “Our first aim,” Estelle wrote, “is to help women, for health or economic reasons, to regulate the size of their families.” PPFA, highly impressed with the “high powered, efficient dynamo” now directing the Connecticut League, agreed to contribute three thousand dollars, or about half the first year cost of the program; PPLC would raise the rest.

On January 24 the PPLC board, with two Port Chester representatives in attendance, formally approved the referral operation. By mid-February PPFA had secured initial funds from an “anonymous” donor—actually St. Louis vaginal foam manufacturer Joseph Sunnen—and PPLC was beginning to train volunteers for handling the actual referrals. Many of the lawyers were somewhat dubious that a First Amendment claim would be a decisive defense if the referral service did draw prosecutorial attention under the 1879 statute and the auxiliary aiding and abetting provision, but all agreed that any such interference was relatively unlikely.13

In mid-March the upcoming opening of the referral service was announced to the Connecticut press, with significant stories running in seemingly every newspaper in the state. Most quoted Claudia McGinley as emphasizing that “we feel that it is our right under the First Amendment to the U.S. Constitution to give information about such centers in other states to husbands and wives who seek it.” The standard dispatch also added that “Planned Parenthood believes that all married couples have a democratic right to this knowledge,” and on April 10 the first formal referrals from the Norwalk office were transported to the Port Chester clinic.¹⁴

Estelle Griswold and her colleagues were deeply pleased with the success of the referral project. No legal complaints or challenges were voiced, and for the first time since Estelle’s arrival more than two years earlier, PPLC finally had a tangible program. More importantly, as the minutes of May’s annual meeting noted, the referral program also represented “the first actual service rendered by PPLC for fifteen years.” Estelle explained her desire to eventually expand the referrals to other Planned Parenthood clinics in Mt. Kisco, New York, and Providence, Rhode Island, but PPLC as yet had neither the personnel nor the funds for that scale of activity. Everyone also hoped that a test case patient might somehow appear, but no wide-ranging search for one was underway. “We are fortunate in having as a director a person of imagination, experience, and organizational ability,” Beatrice Hessel, who headed one board committee, told the meeting, but “we have a small, much too small, nucleus of working volunteers.”¹⁵

The financial burden of the referral project led PPLC to notify Lee Buxton that its support for the infertility clinic would have to end at the close of the year, and throughout the summer and into the fall Estelle continued to hope for a test case. PPFA and its “anonymous” donor, Joseph Sunnen, were somewhat unhappy that the referral project, although quite successful, was not generating any national publicity or press attention, and both Griswold and McGinley had to invest unnecessary time in persuading PPFA to actually hand over the promised funds. As the fall elections approached, Molly Milmine in particular kept a close eye on the nominations and contests for different state senate seats, but when the November results and Dwight D. Eisenhower’s coattails registered an unprecedented Republican sweep—thirty-one Republicans and only five Democrats in the state senate—PPLC’s legislative hopes immediately soared higher than ever before.16

PPLC quickly decided to go with a doctors’ bill rather than a repeal measure in the 1957 legislature, and by early December it was well appreciated that the thirty-one senate Republicans might not be quite as promising a group as some first thought, for some thirteen of them—along with the five Democrats—were Roman Catholics, a potentially lethal opposing bloc. As of late January, when Kent Representative Francis C. Cady formally introduced House Bill 572, Molly Milmine believed PPLC had sixteen firm senate supporters and a good shot at winning either support or convenient absences from up to five more. “This session is our big chance for success,” she told Griswold and the board, and “the hearing will be as medical as we can make it.”¹⁷

Lee Buxton willingly acceded to Milmine’s request that he prepare to play a leading role in the mid-March hearing. Reviewing the transcript of the 1955 one, he told Milmine, left him both “amused” and “disturbed” at the misleading nature of the opposing physicians’ claims. “I do think that the simple presentation of two or three cases which have had tragic sequelae here” at Yale’s ob/ gyn ward at the Grace–New Haven Hospital within recent weeks “might make a fairly dramatic impression” on legislators: a twenty-eight-year-old woman, “Irene W.,” who had died three days earlier from severe rheumatic heart disease that had been exacerbated by her six-month pregnancy; a twenty-three-year-old woman with very high blood pressure and in her fourth month of pregnancy, “Ruth O.,” whom Buxton feared might very well die because of a severe cerebral hemorrhage. Milmine encouraged him in his preparations, and by late February she had also arranged for Sharon’s Dr. Robert Fisher—PPLC’s willing prospective plaintiff of several years earlier—to likewise be a featured witness. A week later Milmine gave the board’s executive committee her most optimistic report yet, saying “we now have eighteen senators who are with us,” although “some more firmly than others,” in addition to two others who “will not vote at all.” Other observers estimated the dependable total at only fifteen, but Milmine mused about whether Democratic Governor Abraham Ribicoff—who had voted against birth control legalization as a house member—would sign this bill should it reach his desk. Experienced advisors stressed that PPLC’s low profile was all to the good, especially in light of a major sectarian battle that was brewing over Archbishop Henry J. O’Brien—and Joseph Cooney’s—decision that Catholic forces would go all-out to win legislative approval for a bill that would authorize publicly funded school bus transportation for nonpublic—i.e., parochial—school students.18

At the March 21 hearing, Buxton, in countering some of the opponents’ 1955 remarks, emphasized that birth control and abortion—“killing another individual by therapeutic abortion”—were highly dissimilar. The latter involved “the killing of an unborn child” whereas birth control “is as different from abortion as day is from night.” Buxton, Fisher and a third colleague were followed by Joseph Cooney and several opposing physicians. One of them sought to persuade the committee that any use of birth control was harmful both to a woman and to any children she might have. “Sexuality … must be fully satisfied in order to maintain emotional health and equilibrium,” Dr. Salvatore Carraba of Hartford asserted. “Many women using contraceptive devices are frigid, and present a variety of ailments which are really a manifestation of their lack of sexual gratification.” Carraba was not asked what experiences his opinions were based upon, nor was he questioned about his second major claim: “Psychiatrists have noted that the problem child’s behavior can be traced to the emotionally unstable and sexually frustrated mother using birth control measures.”¹⁹

A dismayed Lee Buxton criticized such “irresponsible medical comments” privately to Estelle Griswold, and in early April the Public Health and Safety Committee approved the bill on a vote of 15 to 6. Press observers reported, in distinct contrast to Molly Milmine’s earlier optimism, that there were some twenty-two firm no votes in the senate, but on April 17 the house passed the bill by the impressive margin of 170 to 58. One week later, however, a private senate caucus in advance of the public floor vote resulted in a tally of fourteen yeas, twenty nays, and two abstentions. Hence the principal proponent, Wethersfield Republican Elmer S. Watson, agreed to simply a voice vote on the floor, and the bill was quickly defeated in what the Hartford Courant estimated was “about ten seconds.”²⁰

Estelle and her colleagues were disappointed but not surprised at the legislative denouement. The referral service was an ongoing success, and Stelle told PPLC’s annual meeting in late May that “Our program is growing but our organization and fund-raising are still weak.” PPLC’s number one priority, she said, was to “Raise more money!”; privately her hopes of generating one or two test cases, right there in New Haven, were distinctly higher than ever before. Claudia McGinley privately praised her as “a dynamo of energy,” and sometime in early June, after more than one attempt, Estelle finally succeeded in arranging a private conversation with New Haven County State’s Attorney Ab Ullman, still in office more than fourteen years after his victory in Tileston. Ullman conceded that PPLC had no chance of modifying the anticontraception statute in the legislature, but he apparently was noncommittal as to whether he would at all welcome another situation that would place him in the position of having to defend a statute that he personally disliked.21

The summer and fall of 1957 were seemingly quiet for PPLC. In late June the office moved five doors up Trumbull Street, to number 48, where they could enjoy substantially more space than had been available at number 38. Stelle’s salary was increased to six thousand dollars, and in October she attended an International Planned Parenthood conference in Berlin, where for the first time she met the ageing Margaret Sanger. But much more importantly, by sometime early in January 1958 her hope of actually filing a test case was beginning to approach fruition as Lee Buxton resolved that he and—presumably—several of his patients would go to court in the case that everyone had discussed—but no one had ever filed—in the fourteen years since the Supreme Court’s rejection of Tileston v. Ullman.²²

Charles Lee Buxton had been chairman of Yale’s ob/gyn department, and responsible for its services at Grace–New Haven Hospital, for almost four years at the time that he agreed to be the lead plaintiff whom PPLC had been seeking for so many years. Fifty-three years old, he had grown up in St. Paul, Minnesota, where his father operated a lumber business. While attending a New Jersey prep school he had suffered a football injury that required multiple operations on his spine, and eighteen months recuperation, but he had gone on to graduate from Princeton and then earned his M.D. degree at Columbia in 1932. After internships and residencies, he joined Columbia’s medical faculty in 1938, specializing in research into cures for female infertility. World War II drew Buxton into the Navy for three years, but afterward he returned to Columbia and by 1951 he was a full professor with a lucrative private practice. But his uppermost professional goal was to have a departmental chairmanship, and when Yale, in 1953, offered him just that, he eagerly accepted, even at the cost—a very substantial cost—of giving up his private practice in return for extensive and unremunerative administrative duties. His four children—ages six to eleven—were all in school, and his wife Helen, a native of Massachusetts, was more than a little ambivalent about the move from cosmopolitan New York to modest New Haven, and about the challenges that their dramatically reduced income would pose for family finances. But for Lee Buxton the chairmanship was more than worth it, and he had plunged eagerly into all its duties—“he was really married to the job,” Helen recalled almost forty years later. The PPLC-supported infertility clinic was one of those responsibilities, and when the request had come to testify at the March 1957 legislative hearing, Lee Buxton had willingly accepted.23

The death of Irene W., and the serious illness of Ruth O.—the two serious pregnancy-related cases from early 1957—had each influenced Buxton’s legislative testimony about how the 1879 statute hindered women’s health care, but after the hearing, as he later recalled, “I sort of gave up the idea for a while.” But the problems did not go away. There was apparently another pregnancy-related fatality, and Ruth “Oldendorf”’s²⁴ pregnancy and extremely high blood pressure, while not fatal, nonetheless had had tragic results: she had suffered a serious stroke, and in June 1957 had miscarried a stillborn, seven-month fetus. The aftermath of the stroke had left her with impaired speech, only partial use of her right leg, little if any use of her right arm, and only modest hopes for future improvement. It had been a devastating experience for both Ruth and her husband, and another pregnancy would undeniably prove fatal. Additionally, just a few weeks after his legislative testimony, another patient, Anne K., who because of a blood disorder already had endured three unsuccessful pregnancies, suffered yet another full-term miscarriage. Both she and her husband, Hector, had felt traumatized by the repeated experience, and increasingly despaired about their hope of having children.

Lee Buxton saw a good deal of both Ruth and Bob Oldendorf, and Anne and Hector Kinloch, during those months, and their difficulties were much on his mind. Then early in the fall another case presented itself. Elizabeth “Odegard”²⁵ had arrived at Grace–New Haven Hospital just a few weeks earlier, with an incurably ill infant. Her two previous babies had already died in very early infancy—at nine and six days, respectively—within the previous three years, also because of unidentified congenital effects, and on October 17, at age ten weeks, this little boy too passed away. For the Odegards, as for the Oldendorfs and the Kinlochs, these tragic results of unsuccessful pregnancies threatened to be truly overwhelming.

The simultaneous presence of these cases, where three women all faced serious pregnancy-related threats to their physical and emotional health, raised the question of the anticontraception statute in Lee Buxton’s mind once again. “So one day at a party,” he later remembered, “I talked with Fowler Harper,” whom he knew from their previous mutual panel appearances. Buxton told Harper about his patients and their medical needs for birth control, “and he thought maybe we could make a case for the law’s being unconstitutional—infringing on my rights as a doctor and the patient’s right to be treated—if I got together the evidence.” Buxton agreed to do so, and he did not delay.26

Buxton apparently approached Anne and Hector Kinloch first. Hector, a graduate of Cambridge University in England and a U.S. Army veteran, was working on his Ph.D. in Yale’s history department and serving as director of the university’s International House, where they lived. Anne, a native of Rhode Island, was working as secretary to Yale’s Episcopal chaplain. They had been married two years, and had experienced an unsuccessful pregnancy in 1956 as well as the late miscarriage in the spring of 1957. Anne had had two earlier unsuccessful pregnancies in a previous marriage, and Lee Buxton had held out some hope that they might be able to circumvent the RH-negative incompatibility that underlay the repeated miscarriages. “It was a very difficult, indeed tragic” situation, Hector recalled thirty-five years later, a “searing” experience. They had both seen Lee Buxton “many times” in the course of 1957, and had been his patients for quite a while before he first broached the question of being anonymous fellow plaintiffs in a test case against the Connecticut statute. They readily agreed.²⁷

Buxton knew Ruth and Bob “Oldendorf” best. Bob and Ruth were both New Haven natives, and had married shortly before Bob went off to military service in Korea in 1954. Upon his return he took a job with a dairy company, and then in the spring of 1957 came Ruth’s pregnancy and stroke. They too, like Anne and Hector, had seen Buxton many times in the course of the year, and Buxton raised the topic of an anonymous court case with them somewhat tentatively at first, explaining that while he already had other participants, Ruth’s situation would make her a highly appropriate plaintiff—“he said he needed somebody to be ‘Jane Doe,’” Bob Oldendorf recalled years later. Buxton explained the statute to them, and how most Connecticut residents, and doctors, circumvented it in a quiet or “underhanded” manner. Beyond authorizing pseudonymous use of their names, Buxton said, “‘You won’t have to do anything,’” and “‘you’ll probably never get involved in it.’” Ruth was not in good health, and Bob was preoccupied with her prospects for recovery. But Lee Buxton had gone out of his way to do all that he could for Ruth, and while Bob at the time “didn’t really fully understand” what Buxton’s request entailed, he also did not doubt that they should accede to this very modest request from someone who had been so kind and helpful. “That’s why I went along with it,” Bob remembered.28

Lee Buxton had seen much, much less of Elizabeth and David “Odegard.” Both natives of the west, David’s employer had transferred him from Indiana to New Haven in early September of 1957, when their third child was just five weeks old. Their first two babies had died in January 1954 and April 1955, and the prospects for this boy were highly uncertain. Their Indiana doctor had instructed them to go to Grace-New Haven Hospital immediately upon arrival in Connecticut, and had sent their medical records on ahead of them. It was a time of “a lot of stress for us,” Elizabeth later said with considerable understatement, and on October 17, just five weeks after their arrival in New Haven, this third child too passed away. Some weeks later, Buxton—who had not been their principal physician—raised the test case subject with them. After being assured of complete confidentiality, they put aside their initial hesitation and agreed. Thus by sometime in early January 1958, Lee Buxton had three compelling medical cases—and human stories—tentatively ready to take to court.²⁹

Medical tragedies were of course not the only events taking place at Yale during the fall of 1957. Jean Cressey and Marvin Durning were two students who met each other there that September. Jean was a Massachusetts native and Oberlin graduate who had spent a year in the Philippines and was just beginning Yale’s master of arts in teaching program. Marvin had graduated from Dartmouth in 1949 and had taken one year of classes at Yale Law School before winning a Rhodes Scholarship to England. That had been followed by four years in the Navy, and only in September 1957 was he returning to finish his final two years of law school. By Christmastime Jean and Marvin had decided to marry, and sometime just after New Year’s Jean made an appointment at Yale’s student health service to request birth control advice and a diaphragm. Although she remembered the battle over the 1948 Massachusetts birth control referendum, she was nonetheless taken aback when the female physician at the Yale health service informed her that such devices could not be fitted or provided in Connecticut, and that the closest Planned Parenthood clinic was across the state line in Westchester County, New York. Jean had a full course load, a student-teaching assignment, and several big exams fast approaching. Having to take most of a day to drive all the way to Port Chester and back for such a simple matter was inconvenient and irritating. “I was really annoyed,” she later remembered, “at the idea that I would have to find my way to New York, to the closest Planned Parenthood, to get birth control advice.” Within a few days she made the trip down to Westchester. “I drove into town. I had the address, but I couldn’t quite find it right away, and I found a policeman, and I stopped and asked him. I didn’t ask by the full number of the address, I just asked where is ‘Fowler’ Street or whatever it was, and he said something like ‘Go up to the second traffic light, turn left, it’s in the first block on the right.’ A young woman in Connecticut license plates asking for the street was enough for him to know where I was going.”

Jean’s trip was successful, but Marvin too was more than a little irritated at the inconvenience that the old Connecticut statute had caused Jean. “I was quite upset,” he recalled, and complained about it the next day at lunch in the law school to several friends. Afterward he went upstairs and mentioned his annoyance to his civil liberties professor, Tom Emerson. A quiet and understated man whom conservatives nonetheless viewed as a dangerous radical, Tom Emerson had a quick and specific reaction when Marv related Jean’s experience: “Go talk to Fowler Harper. Fowler is thinking about a case.”

Durning knew Harper from having taken his torts course back in 1949–1950, and Harper welcomed Emerson’s recommendation that Marvin see him. Perhaps several weeks had passed since his conversation with Lee Buxton at that party, and Marvin’s description of Jean having to drive all the way to Port Chester and back stimulated Harper’s indignation in an even more pointed way than had Buxton’s three case descriptions. “Fowler was outraged,” Tom Emerson later said in remembering Harper’s reaction to Durning’s visit, at the “governmental intrusion” into marital privacy that the old statute represented. “I don’t think that there had been a final decision to do something at the time of my first conversation with him,” Marvin Durning recalled, but within days of that visit, Fowler Harper, like Lee Buxton, made a firm decision that the 1879 statute should indeed be challenged in court as an unconstitutional exercise of government power.30

Fowler Harper had been at Yale Law School for nine years when he had those two successive conversations with Lee Buxton and Marv Durning, but he had had a significant and colorful career long before moving to New Haven. Born in Germantown, Ohio, in 1897, Harper began taking law classes at Ohio Northern University in 1918 and passed the Ohio bar even before his 1921 graduation. He took a job as football coach at a small Ohio college, survived a nearly fatal stabbing by an unidentified assailant in Kalamazoo, Michigan, and married an Iowa woman, Grace Gill. They had a daughter in 1925, and Harper completed a master’s degree in English at the University of Iowa before earning a graduate law degree at the University of Michigan. He began publishing extensively in law journals, and after teaching law for several years at the University of North Dakota, in 1929 he moved to the Indiana University Law School. By the late 1930s Harper was a protegé of Indiana Governor—and former Indiana law dean—Paul V. McNutt, and in August 1939 McNutt, now in Washington, named him General Counsel of the Federal Security Agency, a New Deal bureaucratic construct that included the National Youth Administration, the Civilian Conservation Corps, the Public Health Service, the Office of Education, and the Social Security Board. Harper stayed in the position for only a year before returning to I.U., but in May 1942 McNutt appointed Harper deputy chairman of the War Manpower Commission, a high-profile position that Harper held for twelve months before resigning with a public blast that the commission’s work was too heavily influenced by private corporate interests. He moved for a few months to the Office on Economic Warfare, and then in September 1943 was named Solicitor of the Interior Department by Secretary Harold Ickes. After two years in that job, Harper returned to the I.U. Law School in the fall of 1945.31

While in Washington Harper had been a delegate to both the 1940 and 1944 Democratic National Conventions; he also had been a leading member of the National Lawyers Guild, an association of liberal and progressive attorneys which he first had joined in early 1937, and through the NLG Harper had become good friends with many fellow New Deal progressives, including Thomas I. Emerson. Back in Indiana, Harper in the summer of 1946 was one of the first signatories of a petition to put the Communist Party on the state ballot, and within a few months local American Legion chapters were charging that Harper was a leading figure in Indiana communism. State and Chicago newspapers heralded the allegation, and in early December 1946, seventeen years after first arriving in Bloomington, Harper submitted his resignation to I.U.’s Board of Trustees. “I am not a political sympathizer with the Communist party nor have I ever been in sympathy with its political philosophy, practices or objectives,” Harper declared, explaining that he had signed the petition at the request of a regional CIO official. Harper quickly filed suit against the Chicago Herald American over one outlandish story, later received a fifteen-thousand-dollar settlement, and by September 1947 had joined his friend Tom Emerson on the Yale Law School faculty.

A thorough FBI probe into Harper’s politics and affiliations in Indiana uncovered only acquaintances who characterized him as an “enthusiastic dice player” and a self-described best friend who reported that “Harper has the idea he can drink anyone ‘under the table.’” Some colleagues attributed Harper’s heavy drinking to his time in Washington, while others saw its roots in his wife’s nervous condition, a circumstance which led to their 1950 divorce and to Harper’s subsequent very painful estrangement from his daughter. But the Indiana controversy and the move to Yale did not lessen Fowler’s active interest in politics and world affairs; within months of his arrival in New Haven he and another progressive colleague, Fred Rodell, persuaded twenty-two of the law school’s twenty-seven professors to sign a public letter calling for the abolition of the House Un-American Activities Committee, a declaration that resulted in heavy public criticism. Fowler also served as vice-chairman of the American League for a Free Palestine, and in September 1948, along with a U.S. Representative from New York, he narrowly escaped being killed by an Egyptian mortar shell during a trip through southern Palestine. In 1949, along with a small number of other progressives or leftists, he testified against the nomination of Attorney General Tom C. Clark to a seat on the U.S. Supreme Court, and two months later, at the instigation of a Yale undergraduate named William F. Buckley, Jr., Harper debated internal security policy with top-ranking FBI executive Louis B. Nichols. Throughout the early 1950s Harper published a raft of essays in such magazines as The Nation and The Atlantic Monthly, attacking Truman administration internal security policies and lambasting the Supreme Court for anticommunist holdings such as Dennis v. United States, which Harper termed “the worst blow to democracy since the Dred Scott decision” upholding slavery in 1856.32

In December 1950 Fowler married Miriam Cohen, a progressive social worker at New York’s Jewish Board of Guardians, and Miriam moved up to New Haven. Fowler’s outspoken opinions and occasionally flamboyant style drew criticism from some Yale trustees and law school alumni, especially since the faculty also boasted two other well-known progressives, Emerson and Rodell—or “Tommy the Commy” and “Fred the Red” among right-wingers. One gentleman who met Fowler at a New Haven card game went so far as to write to Yale’s Provost to register a formal complaint about Harper’s poor manners at poker: “when he fails to win, which is very often, [he] tears the cards up and scatters the pieces around the room.” Considerably more serious were the ongoing complaints that Harper was some sort of subversive, and in March 1953, perhaps as a direct result of defending Dr. John P. Peters of Yale’s Medical School against allegations that he was a communist, Harper apparently was asked to prepare an informal but written response to the charges. “I do not belong to any organization which I regard as a communist front,” he stated in a letter addressed to law school colleague Eugene V. Rostow. He recently had resigned “because of communist domination” from the National Committee for the Arts, Sciences and Professions, and he vowed that he would resign his membership in the National Lawyers Guild “immediately” if “I ever conclude that the Guild is communist dominated.” Two months later, however, when he told a Washington audience of the General Federation of Women’s Clubs during a debate that communists should be allowed to teach at American colleges, he was booed and hissed in a scene that drew front-page coverage in Washington newspapers. To add injury to insult, three days later the Washington Times Herald attacked Harper editorially and noted that he was the same person who had resigned from the Indiana faculty in 1947 amidst allegations of communist affiliation.33

Not all of Harper’s life in the early 1950s was consumed by controversy, however. In 1952 he published Problems of the Family, a book that addressed policy issues by combining social science with the law, and it was reviewed positively in a wide range of professional journals. Three decades later one legal historian singled out the volume as “a radical departure from traditional casebooks on domestic relations in its organization and in the help it sought from other disciplines.” Harper’s other scholarship also ranged widely, from a review of Alfred Kinsey’s Sexual Behavior in the Human Female to his primary specialty of torts. In 1956, after several years of work, Fowler and his colleague Fleming James published The Law of Torts, a major treatise that would make their names familiar to several generations of American law students and lawyers.³⁴

Harper was one of the most popular members of the law school faculty, both with students, who found him highly accessible as well as personable, and with his colleagues, even those who disagreed sharply with his political views. Fleming James later remembered him as “the most truly altruistic and compassionate man I have ever known,” and Gene Rostow, not one of Harper’s particular friends, acknowledged that “he was without malice” and “everyone recognized his generosity of spirit and the purity of his motives.” Tom Emerson noted that Fowler’s “unorthodox nature did not take kindly to organizational routine or compromise” and that often “he did not care whose toes he stepped upon.” Rostow called him “a crusader by temperament” who was “acutely sensitive to injustice” and had a low boiling point. He took great pleasure in all the many battles, Emerson and Rostow both agreed, and “the more violent the controversy the greater was his delight,” Emerson thought. Harper’s colleague and future federal judge Lou Pollak found both Fowler and Miriam to be “terribly gregarious people,” and Fowler and Miriam’s closest New Haven friend, psychologist Elizabeth Phillips, who earlier had worked with Miriam in New York, heartily agreed, adding—as someone who named her daughter for her friends—that he was particularly “wonderful with children.”35

But Fowler never shied from a controversy. In April 1954 he and his colleague Vern Countryman—the erstwhile Hamden condom purchaser and former Douglas clerk—faced off against Bill Buckley and L. Brent Bozell in a widely publicized debate about McCarthyism, and that same year—at the height of the Red Scare—Fowler sent a public greeting to a dinner marking the thirtieth anniversary of the Communist Party’s newspaper, The Daily Worker: “If the government can destroy your newspaper, with which I disagree, I am most fearful that it can and sometime will suppress publications with which I agree.” Harper and Emerson that same year fought and lost a major battle within the law school to win tenure for Countryman, who had joined Harper in Dr. Peters’ case and would subsequently join him in filing a Supreme Court amicus brief in another major Communist Party case, Yates v. United States.

The following year Dr. Peters finally prevailed in the Supreme Court, with Thurman Arnold and Paul Porter handling the final argument instead of Harper, while Fowler himself triumphed in the Connecticut Supreme Court in a long-running and legally complicated damage suit he had brought against a dishonest real estate agent who had finagled Harper out of sixty-three acres of additional land in the course of selling him a seventeen-acre farm in Haddam, Connecticut in 1948–1949. Harper had recruited Catherine Roraback, a 1948 Yale Law School graduate whom both he and Tom Emerson previously had known in progressive circles in Washington, and who now was a colleague of theirs in the New Haven Civil Liberties Council, to try Harper v. Jere Adametz et al. They had lost in the trial court, but in March 1955, in a 4 to 1 decision written by Justice—and former governor—Raymond E. Baldwin that cited some of Harper’s own work on torts, the Connecticut Supreme Court held that Adametz had committed fraud and that the sixty-three acres would be conveyed to Fowler at a price of one thousand dollars. It was a classic Harper contest and victory, and it carried the promise of at least a modest future windfall. The following year, in August 1956, Fowler and Miriam set off to spend a year at Lucknow University in India on a Fulbright fellowship. Once a month Fowler also delivered lectures in Delhi, and at the end of the academic year the Harpers toured the countries of the Mediterranean and drove from Italy to Copenhagen before embarking on a cruise home. Then, within six months of Fowler’s return to New Haven, Lee Buxton had come up to him at that party and raised the subject of birth control.36

Within a day or two of Marvin Durning’s stimulating visit, Fowler Harper called Lee Buxton to tell him the interesting news and was himself told of Buxton’s encouraging conversations with the Kinlochs, the “Oldendorfs,” and the “Odegards.” Fowler quickly began envisioning the related set of multiple cases that could be brought on behalf of Buxton, his patients, and—as of February 1, 1958—newlyweds Jean and Marvin Durning. Lee Buxton called Estelle Griswold to let her know of the hopeful developments, and Estelle immediately set to work to push things forward. She asked both Lee and Fowler to prepare their thoughts and be ready to share them with PPLC’s top officers, and she notified both PPLC president Claudia McGinley and first vice-president Bea Hessel that a real test case was now very much at hand. Sometime late in January she scheduled a luncheon meeting at the New Haven Lawn Club, and as Fowler looked ahead toward it, he explained to Estelle that since he had no experience in Connecticut trial courts, and was not even a formal member of the Connecticut bar, that they would have to bring in someone else to argue the cases prior to any appeal to the U.S. Supreme Court, where Fowler would handle things. Estelle readily assented, and Harper picked up the phone and called Katie Roraback.

Fowler had known Katie for fifteen years, respected her political views, and had been pleased with their success in the Adametz litigation. A 1941 graduate of Mount Holyoke College, Katie had grown up principally in Brooklyn, New York, where her father was a Congregationalist minister. Her family’s roots, however, lay in northwestern Connecticut, where her grandfather had practiced law before serving on the Connecticut Supreme Court and where her uncle, J. Henry Roraback, had quietly built his fortune while creating his quarter century dominance of the Republican party and Connecticut state government.

But Katie Roraback was about as politically different from J. Henry as someone could get. An economics major at Mount Holyoke, her most important undergraduate experience had been her interaction with female factory workers in a nearby city through the Student Industrial Club. After graduation Katie had worked in Washington, first at the Agriculture Department and then for the National War Labor Board, and had met both Fowler and Tom Emerson. In 1945 she had entered Yale Law School, and after graduation she had begun practicing in New Haven, focusing principally on commercial and labor law.

Fowler in that initial phone call described the patients’ cases and asked Katie if she would like to participate. Roraback jokingly asked him, “In what capacity are you calling me, as an attorney or as a woman?” But she readily said yes, and Fowler asked her to join him at Estelle’s upcoming Lawn Club luncheon. It was there that she first met both Lee Buxton and Estelle, and it was there that Claudia McGinley and Bea Hessel, on behalf of PPLC, formally pledged the organization’s financial backing for the set of cases that Fowler, Lee, and Katie would now begin to prepare. Fowler explained to everyone that their goal would be to reach the United States Supreme Court and to win there, on constitutional grounds; no one should have any realistic expectation that the 1879 statute would be reinterpreted or struck down by the Connecticut courts. He explained as well that they would pose a series of challenges: Lee’s professional claim that a doctor should not criminally be barred from giving his patients appropriate medical advice and treatment, the patients’ own three claims that the wives’ health and, in at least one case, her very life would be at very serious risk in the absence of birth control, and, finally and most importantly, Jean and Marvin Durning’s more basic assertion, in what Fowler called the “civil rights” case, that any married couple should be able to obtain and use contraceptives without obstruction or intrusion by the state.

Katie at that luncheon voiced only one request as a condition for her participation: “that I refused to have anything to do with Morris Ernst,” PPFA’s counsel and an aggressive anticommunist as well as a ham-handed sexist. Griswold, McGinley, and Hessel readily agreed that Ernst would have absolutely no role as the cases went forward, and Katie and Fowler left the Lawn Club fully committed to getting to work on the formal papers that would be necessary for filing suit in New Haven County Superior Court.37

Sometime in April Fowler notified Estelle that they were about ready to go, and either late that month or early in May both Fowler and Katie went to Jean and Marvin Durning’s apartment at 6 Trumbull Street to have them sign a copy of the formal complaint that would soon be filed on behalf of “Ralph and Rena Roe.” Katie had already met Ruth “Oldendorf,” who would indeed become “Jane Doe,” and was tremendously touched by both her struggle and Bob’s supportiveness. Everyone had assumed without question from the outset that pseudonyms would be employed all around, except with regard to Lee Buxton, and everyone additionally understood that it was highly unlikely that any of the non-M.D. plaintiffs would ever have to appear in court. Hector and Anne Kinloch would file suit as “Harold and Hanna Hoe,” and David and Elizabeth “Odegard” would be spoken of as “Paul and Pauline Poe.” On May 12 Fowler told Claudia McGinley that they were within a week to ten days of actually filing the cases, and on May 22 the five sets of papers were formally served on State’s Attorney Ab Ullman and officially docketed in Superior Court. Six days later Katie filed brief motions in four of the five actions seeking formal “permission to use fictitious names.”38

The initial complaints in Buxton v. Ullman and the four companion cases were relatively brief and simple, in part because both Roraback and Harper were all but certain that Superior Court would simply refer the basic constitutional questions to the Connecticut Supreme Court. Buxton’s suit alleged that the 1879 statute infringed upon his “property and liberty” in contravention of the Fourteenth Amendment to the U.S. Constitution; Poe v. Ullman understandably cited both “life and liberty” in making a Fourteenth Amendment challenge, and Roe v. Ullman most basically cited simply “liberty.” Roraback told Estelle Griswold that if they were fortunate the cases would reach the Connecticut Supreme Court before the end of the year, and PPLC’s late May annual meeting included a serious discussion of the expanded fund-raising that the organization would have to undertake. The cost of Katie Roraback’s time, plus simple expenses, was estimated as likely to come to between five and six thousand dollars, and while Fowler Harper came for free, PPLC informed Port Chester and the Mt. Kisco and Providence clinics that it would have to suspend payment of the contributions that previously had been offered to help subsidize their services to Connecticut residents.³⁹

Roraback had hoped to keep publicity about the cases to an absolute minimum until they reached Connecticut’s highest court, but on June 6, two weeks after their filing, the New Haven Register and the Associated Press made the suits front-page news all across the state. The newspapers provided only the bare-bones descriptions of the plaintiffs that had been offered in the official complaints, and no follow-up coverage ensued. The American Civil Liberties Union immediately began discussing whether they should lend some sort of legal hand, but Estelle felt highly confident that these suits would bring eventual success irrespective of additional aid, telling one supporter that “we are already thinking and planning for the day we will open up a center in New Haven.”40

Neither Ab Ullman nor the state Attorney General’s office moved quickly to respond to Roraback’s filings, and the summer and early fall passed without any substantive developments. In New York City a major controversy over an unspoken but long-standing policy that prohibited doctors in the city’s public hospitals from providing birth control services remained in the news for months before culminating in a rule change that represented a significant Planned Parenthood victory, and a number of commentators, including several Roman Catholics, cited the New York events, and the Connecticut statute, as stellar examples of why public policies should not be guided or determined by church doctrine. Jesuit scholar John Courtney Murray expressly attacked the church’s defense of Connecticut’s contraceptive ban, contending that “Since it makes a public crime out of a private sin, and confuses morality with legality, and is unenforceable without police invasion of the bedroom, the statute is indefensible as a law.” The New York Archdiocese insisted that “No indication or need can change an action that is intrinsically immoral into an action that is moral and lawful,” but the Catholic magazine Commonweal firmly retorted that it was in Catholics’ own interest to keep moral questions separate from legal issues. In particular reference to Massachusetts and Connecticut, another Commonweal essay bluntly noted that the decades-long battles over laws that “are merely decorative” served “no real purpose other than” to allow for an ongoing “Catholic-Protestant power struggle.”⁴¹

In mid-September Morris Ernst, Harriet Pilpel and a third associate went up to New Haven to see Fowler Harper about the Connecticut cases, and Katie Roraback gritted her teeth and attended, largely so as to be sure that warm-hearted Fowler would not allow the New Yorkers to insinuate themselves. Harper and Roraback’s successful brush-off of the PPFA lawyers quietly raised some hackles in New York, however, and PPFA president Loraine Campbell, a Cambridge resident and a twenty-five-year veteran of the Massachusetts birth control wars, decided she had better check out Fowler Harper with several of her friends on the Harvard Law School faculty. Benjamin Kaplan praised Harper as a “tremendous fighter” of “enormous courage” who, like his Yale colleagues, was nonetheless a “soggy thinker,” but Lon L. Fuller, a figure of considerable repute, angrily denounced Harper as “a sleazy character” whom Fuller would “not have anything to do with.” He told of Harper’s departure from Indiana, called Problems of the Family “rather unsound,” and termed Fowler a “left winger” and “exaggerated liberal who delights in shocking people.” A concerned Campbell drafted a letter to Claudia McGinley offering PPFA funding if PPLC would like to hire other attorneys, but finally contented herself simply with writing to Harper to offer praise of Lee Buxton and to request an update.42

In early October Joseph Sunnen, the St. Louis vaginal foam manufacturer, donated a thousand dollars to PPLC to help with the cases, but the ongoing delay disappointed everyone. PPLC began making plans to sponsor a bill in the upcoming 1959 legislature, and Loraine Campbell and Harriet Pilpel repeatedly compared notes about how the Connecticut litigation might be improved. Pilpel and Ernst had encouraged Harper and Roraback to think about adding some additional cases in which ministers would complain that the 1879 statute interfered with religious liberty by prohibiting them from advising parishioners about the advisability of birth control, but Pilpel and Ernst were also eager to detect shortcomings in Harper and Roraback’s original complaints, with Ernst griping that the Doe case was a poor selection since her condition was so serious that only sterilization would really be appropriate. Campbell was concerned that the anonymity of the patients might eventually become a problem, but Pilpel assured her that Harper had said that at least two of the pseudonymous plaintiffs—namely Jean and Marvin Durning—would be willing to step forward if it became necessary. Pilpel also sought to leaven Campbell’s ongoing worries about Harper, jokingly telling her that the only serious problem was that Harper “drinks too much in the evening, but we can meet at day time!”⁴³

Late in October a frustrated Roraback, who already had tried several times without success to prod the defendants into action, filed a formal motion requesting a default judgment on account of her opponents’ failure to plead. On November 7 the state Attorney General’s office, in a clear signal that it was taking over defense of the actions from Ullman, filed similar two-page demurrers in all five cases, contending that the issues had been “conclusively determined” in Nelson and Tileston and that “there is no uncertainty” in any of the cases. “The passage of time and a change in Court personnel,” Assistant Attorney General Raymond J. Cannon said, “cannot be grounds for seeking a review.” An additional problem in four of the five suits, Cannon added, is that the plaintiffs “are fictitious persons and as such cannot invoke the powers of the Court to solve purely academic questions.”⁴⁴

Harper and Roraback were more concerned about the growing signs of intramural unhappiness within the New York world of Planned Parenthood than about Cannon’s response, for as Harper attempted to reassure Loraine Campbell, “We assume that we will lose in the state and our hopes are pinned upon an appeal to the Supreme Court.” They also lined up C. Lawson Willard and two other willing ministers as additional potential plaintiffs as Pilpel and Ernst had suggested, and in mid-November Harper went down to New York for a long conference with Ernst, Pilpel, Campbell, and PPFA director William Vogt in order to try to lay their concerns to rest. Ernst and Pilpel, perhaps still sensitive fifteen years later because of the damage caused by Fritz Wiggin’s initial error in the Tileston complaint, grilled Harper in some detail about language disparities in different paragraphs of the Doe complaint, and suggested that amended complaints might be advisable. Additionally, right after the meeting Campbell called Lee Buxton to be sure that he would suggest to Harper the advisability of an amicus brief that could be signed by prominent doctors.45

On December 5, more than six months after the suits had been filed, Katie Roraback finally squared off against Ray Cannon of the state Attorney General’s office in an initial hearing before Superior Court Judge Frank T. Healey—a Waterbury native who twenty years earlier had been a fellow advisory board member along with Bill Fitzgerald for Father Eugene Cryne’s Diocesan Bureau of Social Service. Cannon, like the judge, was a Roman Catholic graduate of Holy Cross College and Yale Law School, and now he reiterated the two points he had stressed in his preliminary papers. First, all of the legal issues “presented in the present complaints have been so authoritatively determined by the Nelson and Tileston cases that there is not now any justiciable issue” remaining. Both decisions explicitly held that the judiciary “is without power to create any exceptions in the subject statutes,” and by asking for such the plaintiffs “are in effect seeking to have the Court act in a legislative capacity.” Second, he repeated his earlier assertion that the anonymity of plaintiffs in four of the five actions raised a serious and perhaps fatal procedural problem. Katie Roraback responded by telling Healey that another Superior Court judge, James Shannon, had verbally assured her that the Doe-Poe-Hoe-Roe usages were acceptable, and she rebutted Cannon’s substantive reliance on Nelson and Tileston by emphasizing the plaintiffs’ core contention: “These people have the right to be allowed to continue normal marital relations without being inhibited by the state.” Irrespective of the precedents, the 1879 law was so intrusive as to be inherently unconstitutional: “A statute which by its very terms may inhibit the most personal relationships of marriage is itself unreasonable” and hence void. Judge Healey said only that he would take their arguments under advisement, and issue a decision sometime in the future.46

Soon after that hearing the internecine tensions involving national Planned Parenthood took an odd but ultimately very important turn. For almost thirty years, since the 1929 raid on the Clinical Research Bureau, Morris Ernst had been Sanger’s—and then PPFA’s—principal lawyer. For much of that time he had prided himself on taking a less hostile attitude toward Roman Catholicism than was true of Sanger or some others within Planned Parenthood. Now, however, just after having reached his seventieth birthday, Ernst underwent something of a shift, insisting repeatedly to PPFA president Loraine Campbell that the organization needed to adopt a more hard-nosed stance. In mid-November Ernst had erupted at Campbell in front of several strangers, criticizing her “in the most vituperative way” for PPFA’s restraint, and Campbell had complained to many of her colleagues about this “utterly indefensible behavior on the part of the official counsel.” Harriet Pilpel, for twenty years Ernst’s principal deputy but now a forty-seven-year-old partner in her own right, advised Campbell to have a quiet lunch with her now-ageing mentor. A date was made for early December, and that very same morning a furious Claudia McGinley called Campbell to rebuke her for Ernst’s office having sent a junior associate to monitor the New Haven hearing and further lobby Fowler Harper on behalf of the New Yorkers’ tactical recommendations. Campbell angrily told McGinley that the young observer had been dispatched at her request because of the unresponsiveness of the Connecticut lawyers, but at lunch Ernst had little interest in discussing the Connecticut scene and instead returned to his “extremely rude” assault on Campbell’s and PPFA’s political cowardice. Ernst twice threatened to resign as PPFA’s counsel if his advice was not better heeded, and as Campbell later wrote, “I did everything I could to placate him because he really was in a dangerous and irrational mood and I was afraid that he might go out and shout from the housetops about what a lot of damn fools we are.” Campbell wondered if Ernst in part might be distraught over the fact that the Connecticut problem was finally on its way back to the Supreme Court, but without he himself playing a significant role, but in the aftermath of the angry lunch Harriet Pilpel attempted to reassure Campbell that both she and Ernst felt comfortable with Fowler Harper. Campbell wondered too if Ernst was upset that PPFA had largely ignored his advice during the New York City hospitals controversy several months earlier, but it was Campbell’s explicit instructions to PPFA’s staff that later made the lunch so significant: in the future “all legal matters should be routed through Mrs. Pilpel herself and not through Morris.” After more than thirty years on the front lines, Morris Ernst would spend his remaining years talking mostly to himself.47

On January 5, 1959, Frank Healey issued a sloppy and careless two-page decision upholding Cannon’s substantive objections to the five test case complaints. Failing to note even the U.S. Supreme Court ruling in Tileston, Healey erroneously stated that Nelson had involved a patient and then offered little more than a brief reprise of the Connecticut Supreme Court’s majority opinion in Tileston. Two weeks later Ray Cannon moved for a formal entry of judgment, and once that was done Katie Roraback in early February filed notices of appeal to the Connecticut Supreme Court. Fowler Harper was hopeful that oral argument there would take place sometime late in the spring, but within days of Healey’s decision Jean and Marv Durning informed him that they would be moving to Seattle once Marvin completed his final semester of law school courses that spring. Fowler, knowing that Roe v. Ullman, the most important of the five cases, would have to then be withdrawn once they left the state, immediately began looking for another young married couple who could take the Durnings’ place.⁴⁸

PPLC’s thinking about a 1959 legislative effort had been influenced both by the lawyers’ discussions about the advisability of filing several religious freedom cases on behalf of ministers and by the results of the November 1958 elections, in which the greatest Democratic sweep in decades had resulted in a twenty-nine to seven margin of Democratic control in the state senate and the first Democratic majority in the state house (141 to 138) since 1876. Estelle and others, recognizing that the legislative effort would of course be truly hopeless, decided to frame it in such a way as to give a publicity boost to the ensuing litigation: the 1959 bill would be a religious freedom as well as a maternal health measure, and would call for a statutory exception to the 1879 law when contraception was practiced “pursuant to spiritual or medical advice.” Harper himself drafted the measure, and Estelle recruited official support for it from the Connecticut Council of Churches and several other ministerial groups. Representative Dorothy Miller of Bolton formally introduced it in late January, and PPLC’s board agreed that the ministerial law suits that Harper had prepared would be held in abeyance until the legislative demise of the bill was sufficiently obvious so as to supply an appropriate occasion for the public filing of the cases.49

Not until late April did the 1959 legislative hearing take place, with attorney Frank P. Lockard from the Council of Churches serving as coordinator for the bill’s proponents. New Haven ministers George Teague of the First Methodist Church and C. Lawson Willard of Trinity Episcopal Church were the primary affirmative witnesses, with Willard testifying that the 1879 law represented “a curtailment and an infringement of my religious liberty” by prohibiting him from recommending birth control to parishioners. Joseph Cooney was once again the leading representative for the bill’s opponents, and when Bethany Representative Jack Turner began energetically questioning a Hartford physician who had spoken against the measure, Cooney jumped in and interrupted. Public Health and Safety Committee chairman Senator Norman Hewitt admonished him bluntly: “Mr. Cooney, I am sure you won’t allow that to happen again.… Mr. Turner has the right to ask any question that he desires and that right will be respected.” Turner himself told Cooney that “I don’t think your outburst was called for,” but when Turner resumed questioning the doctor, the diocesan lobbyist again interrupted in an effort to end the interrogation. An angry Hewitt rebuked him again: “Mr. Cooney, I am the chairman of the hearing and we will terminate it when we are ready.”

Cooney’s insolent performance offended the legislators, but it could not save the bill from its inevitable fate, and six days after the hearing the committee voted by secret ballot to reject it.⁵⁰ PPLC wasted no time in moving along with the next step in its plans, and four days after the committee vote ministers C. Lawson Willard, George Teague, and Luther Livingston each filed suit in New Haven County Superior Court, alleging that the 1879 statute was an unconstitutional infringement of their religious liberty and pastoral counseling rights as protected by the free exercise clause of the First Amendment. Harper had recruited another young New Haven attorney, Louise Evans Farr, whom he—and Willard—knew from the New Haven Civil Liberties Council, to handle the ministerial suits, and he had some hope that they might catch up to the others either at the Connecticut Supreme Court or at the U.S. Supreme Court.

Harper also hoped, more fervently, that one other case might catch up to the initial ones. Sometime in March, just prior to the formal withdrawal of Roe v. Ullman, Marv Durning approached one of the few other married students at Yale Law School, David Trubek, who was in the first-year class. David, like his wife Louise, who was in the second-year class, was a New York native and a graduate of the University of Wisconsin. They had been married the previous summer, just before David had started law school, and while neither of them had ever given the birth control issue much thought, they were both willing to sit down with Fowler Harper and discuss becoming the new plaintiffs making the crucial argument that any married couple, irrespective of health issues, had an inherent Fourteenth Amendment liberty right to use contraceptives. David and Louise Trubek not only agreed to be Marv and Jean Durning’s successors, they agreed to do so under their own actual names, and on May 20, following a pro forma consultation between the Trubeks and Lee Buxton, Katie Roraback filed Trubek v. Ullman in New Haven Superior Court.51

Katie Roraback had filed her briefs on behalf of Lee Buxton and his patients with the Connecticut Supreme Court in mid-April, but Ray Cannon requested and received several extensions of the deadline for filing the state’s responses, insuring that oral argument would be put off until sometime in the fall. Roraback’s filings were substantive and professional, highlighting the physical and emotional traumas that the Does, Poes and Hoes each had faced, and noting, in contrast to Gardner, Nelson, and Tileston that “Never before have individual citizens”—i.e., patients rather than doctors and clinic personnel—“raised these questions, nor have their rights been adjudicated, either in this court or in the Supreme Court of the United States.” She also frontally addressed the notion that the criminal prohibition of the use of contraceptives could not be unreasonable and unconstitutional if abstinence was indeed a reasonable alternative for married couples facing serious pregnancy-related health threats, as the Connecticut court had concluded back in Tileston. “If their rights to life and liberty have meaning,” Roraback wrote, “they must … include the right to marriage and the enjoyment of the fullest bounties which that relationship can give.… Sexual intercourse is not a mere adjunct of marriage, which may or may not be engaged in depending on the health and bent of the husband and wife. It is a part of the basic fabric of the whole marital relation.” Lastly, Roraback also directly confronted Cannon’s contention that Nelson and Tileston were thoroughly controlling: “we do not believe that the questions here presented have been authoritatively settled. Even if this were not so, our courts are not so limited that they cannot re-examine vital questions of constitutional interpretation and individual rights when called upon to do so in the light of new events and experience.”⁵²

If Roraback, Harper, and Griswold were pleased with the briefs, however, their ostensible allies in New York were not. Harriet Pilpel gently informed Harper that the Connecticut lawyers should plan to file additional reply briefs once Cannon had submitted his arguments, and hinted that if they chose not to do so, PPFA could file an amicus brief. Harper, after consulting with Roraback, firmly told Pilpel that that would be inadvisable, and Pilpel then informed PPFA that “some rather vigorous action” was called for to convince the Connecticut activists of the New Yorkers’ superior wisdom. Loraine Campbell responded that the national organization “might as well let them go to Hell their own way,” but Pilpel continued to lobby Harper and Roraback toward submitting a reply brief. They tolerated the prodding politely, but Bea Hessel, who was just succeeding Claudia McGinley as PPLC president, called Loraine Campbell to complain about the “unethical” conduct and to point out how Roraback and PPLC had expressly stipulated at the outset that there would be no involvement by Ernst and Pilpel’s law firm. Campbell understandably told Hessel that she too was no fan of Ernst’s, but several days later Claudia McGinley phoned to repeat PPLC’s complaint. In early June Pilpel went up to Yale to repeat the New York insistence on some additional filing to Harper in person, and while Harper was cordial and courteous, the following day Hessel again called Campbell to say that the ongoing New York pressure was infuriating Roraback. Campbell bluntly told Hessel “that we are frankly not happy [at] the way the cases are being developed,” that “it all seemed rather amateurish,” and that PPLC did not understand its subordinate relationship to PPFA.53

In mid-June Fowler Harper, after consulting with both Roraback and Griswold, wrote Pilpel to present what he hoped would be an implicit compromise that would halt the internecine warfare. He reiterated that “any intervention on behalf of the national organization in the Connecticut proceedings is undesirable” since Roraback “insists, as I thought she would, that she cannot effectively collaborate with anyone else in the writing of a reply brief”—the first acknowledgment that there now indeed would be one. Suggestions would be welcome, but any PPFA amicus brief for the Connecticut court would not be. However, once the cases were appealed to the U.S. Supreme Court, a PPFA amicus brief there would indeed be appreciated: “since presumably I will be the only attorney directly concerned, you may count on my cooperation.”

Loraine Campbell continued to fret about the competence of the Connecticut litigation. She tried unsuccessfully to get one friend’s spouse to have Whitney North Seymour review and critique Roraback’s work, and Campbell’s predecessor as PPFA president, Frances Hand Ferguson, declined to ask her father, famed federal appellate judge Learned Hand, to prepare any such appraisal. Bea Hessel again told Campbell that the Connecticut League wanted “no further interference” while the cases remained in the state courts, but in early July Pilpel sent Harper a lengthy and detailed written critique of Roraback’s briefs. None of the points was either central or serious, but Harper continued to tolerate the incessant hectoring far more dispassionately than Roraback or Hessel.54

In late July Ray Cannon finally filed his defense briefs, and again he sought to challenge the legitimacy of the anonymous patient plaintiffs. Since “Harold and Hanna Hoe,” for example, were “fictitious” names, “the real parties in interest have not disclosed their identity.” Thus, Cannon illogically continued, “If the plaintiffs are fictitious persons, it must also follow that the questions which they seek to have adjudicated are academic in nature and do not apply to specific individuals.” This in fact did not follow, but Cannon went on at some length to warn the court that the pseudonyms were “an extremely dangerous precedent” that potentially could open the door to fraudulent litigation.

Cannon offered almost no substantive defense of the Connecticut statute, and Katie Roraback, who had indeed accepted the advisability of submitting reply briefs, told Pilpel that Cannon’s efforts “are hardly enlightening exercises in the arts of the law.” Roraback stressed that her reply briefs would incorporate “many of the suggestions which you so kindly made,” and when she filed them in late August their argumentation was distinctly more vigorous than Roraback’s earlier submissions. She countered Cannon by noting that the original complaints described the plaintiffs in “elaborate” detail and stated that Dr. Buxton maintained that “he is entitled to prescribe the use of contraceptives under any (not limited) circumstances, when in his professional opinion their use will protect the life and health and promote the welfare of his patients.” Since actual patient cases had never before been adjudicated, the Connecticut court ought to willingly reconsider Nelson and Tileston, “especially where the facts so urgently called for the reassessment of prior pronouncements.”⁵⁵

Neither Roraback nor Estelle Griswold held out any serious hope of prevailing in the Connecticut Supreme Court. They both knew that now-Chief Justice Raymond E. Baldwin had backed birth control liberalization twenty-five years earlier as a state legislator, although not when he was governor, and while Stelle and Bea Hessel were already thinking of being able to open a New Haven clinic sometime in 1961, they presumed that would occur only in the wake of a U.S. Supreme Court ruling. A mid-September hearing sent the Trubek case forward for Connecticut Supreme Court consideration, and on October 7—sixteen months after their filing—the Connecticut high court finally heard oral argument by Roraback and Cannon on Poe-Hoe-Doe and Buxton. Loraine Campbell and Harriet Pilpel went up to Hartford to observe, and Chief Justice Baldwin and Justice John H. King dominated the hearing with a wide range of challenging questions. Katie Roraback thought the argument went “quite well on the basic questions,” but was concerned that “a good deal of questioning and doubt was raised as to the propriety of the use of fictitious names.” She and Harper estimated that a decision ought to come by Christmastime, and although the ministerial cases were being delayed by the state, everyone in PPLC sat back to wait for the anticipated defeat that would then allow them to take their challenge onward and upward to the U.S. Supreme Court.56

In late November birth control became a front-page national issue when a number of Roman Catholic bishops, acting through the National Catholic Welfare Conference, issued a public statement denouncing any use of public funds, either domestically or in foreign-aid programs, to disseminate birth control services. Prominent Protestant leaders strongly criticized the statement, but President Dwight D. Eisenhower seemed to endorse it, saying that birth control was “not a proper political or governmental activity or function or responsibility.” Other press coverage noted that the American Civil Liberties Union had recently voted to endorse PPLC’s challenge to the Connecticut anticontraception statute on both First and Fourteenth Amendment grounds, but the sectarian controversy more importantly offered an opportunity for journalists to highlight how widely accepted contraceptive practices now were in almost all portions of American society. Survey data indicated that some 81 percent of married white women of childbearing age now used or had used contraceptive devices, a significant increase from even five years earlier, and that approximately 38 percent of Roman Catholic women in that group also used devices and methods that their church hierarchy condemned. Just as Hilda Standish and her colleagues at the Hartford clinic had recognized twenty years earlier, there was a very large—and now growing—gap between the practices of Catholic lay people and the proclamations of church officials.⁵⁷

On December 22, 1959, the Connecticut Supreme Court unanimously upheld the 1879 law criminalizing the use or counseling of birth control. The opinion, written by Chief Justice—and one-time birth control proponent—Raymond E. Baldwin, offered a lengthy recital of all the unsuccessful legislative efforts to alter the statute before insisting that “Courts cannot, by the process of construction, abrogate a clear expression of legislative intent, especially when, as here, unambiguous language is fortified by the refusal of the legislature, in the light of judicial interpretation, to change it.” Baldwin conceded that “By reason of the facts in the instant cases, the claims of infringement of constitutional rights are presented more dramatically than they have ever been before,” but that Nelson and Tileston nevertheless were controlling because the basic issues raised here were “essentially the same.” The chief justice also admitted that “It may well be that the use of contraceptives is indicated as the best and safest preventive measure which medical science can offer these plaintiffs,” but if the Connecticut legislature nonetheless chose to prohibit that measure and insist on abstinence instead, there was nothing that either Lee Buxton or the Connecticut judiciary could do about it.

Baldwin’s opinion completely avoided ever dealing with the individual rights and constitutional liberty claims that Roraback had advanced on behalf of her plaintiffs. Some months later, however, when a curious and amazed woman from Houston wrote to Hartford to ask if it actually was true that the practice of birth control was a criminal offense in Connecticut, Baldwin himself wrote her a long and detailed personal letter describing why the Connecticut Supreme Court had felt it had no other choice. The plaintiffs’ requests, he explained, “could not be granted without overruling two prior decisions and the presumed will of the state legislature.” The legislative branch, Baldwin stressed, has “always had the authority to pass statutes to promote the public health, safety and morals. Courts do not often interfere with such legislative determinations of how these objectives can best be served unless they are manifestly unreasonable,” and in Buxton the Connecticut court “refused to find that the legislation was so unreasonable that the collective judgment of the legislature should be overturned.”58

Few if any observers were surprised by news of the Connecticut ruling, however. Several national newspapers editorialized against the holding, with the New York Herald Tribune declaring that birth control is “quintessentially a matter of private, not public morality, and one to be resolved as a matter of individual conscience.” Estelle Griswold admitted privately to one friend that she had been surprised by the unanimity of the Connecticut defeat, but Fowler Harper moved immediately to appeal the decision to the U.S. Supreme Court. He had arranged for his friend Eugene Gressman, a Washington attorney who was perhaps the nation’s leading expert on Supreme Court procedure, to handle much of the technical minutiae, and early in January Gressman advised Fowler that the clerk’s office at the court had recommended that they file two separate appeals, one of behalf of Dr. Buxton and the other on behalf of the patients. Just a few days later Harper learned that Anne and Hector Kinloch would be leaving New Haven in June to move to Australia, where Hector had accepted a history faculty appointment, and their departure would necessitate dropping “Harold and Hanna Hoe” from the set of cases. Trubek had not yet caught up, and hence only Doe and Poe would go forward, even though—unbeknownst to Harper—David and Elizabeth “Odegard,” or “Paul and Pauline Poe,” had no longer been Connecticut residents even when Poe was initially filed.59

Both the ACLU and its small Connecticut affiliate, the CCLU, were already aiming toward filing an amicus brief on behalf of Buxton and his patients, and by early February Harper had contacted Whitney North Seymour, Sr., about coordinating the preparation of an amicus brief that could be filed on behalf of nationally prominent doctors. Katie Roraback continued to press forward with Trubek, even though the ministerial cases seemed inextricably stalled, and by mid-March it had been agreed that Harriet Pilpel would prepare a Supreme Court amicus brief on behalf of PPFA. Harper himself was hard at work on drafting the initial substantive submission for the high court, the jurisdictional statement that would set out Buxton and the patients’ arguments for why the Supreme Court should hear their appeal. Gressman reviewed a first draft and recommended more attention to the constitutional rights claims and less to the medical acceptance of birth control, and on March 23 the two documents—one for Buxton, one for Poe and Doe—were formally filed.⁶⁰

Harper’s Poe submission was the longer and more important document. He described “Jane Doe” and “Pauline Poe’s” medical problems in greater detail than Roraback had employed in the original complaints, and then presented the crux of his constitutional argument. The Connecticut statutes, he noted, “purport to regulate the behavior of married persons in the privacy of their homes in an arbitrary manner which restricts their liberty and seriously jeopardizes the lives and health of spouses.” Four decades earlier, in 1923, the Supreme Court in Meyer v. Nebraska had spoken of “the right of the individual … to marry, establish a home and bring up children,” and Harper, citing that precedent, forthrightly insisted that “The right to marry and establish a home … necessarily implies the right to engage in normal marital relations. And the right to engage in such relations embodies a personal freedom or privilege to procreate or not procreate as the individuals may desire or as medical factors may dictate. This right must therefore be considered as one of the bundle of rights which are ‘fundamental to the very existence and survival of the race,’” a category the Court had spoken of eighteen years earlier in Skinner v. Oklahoma. “Legislation which leaves total abstention as the only alternative to death or impaired health is on its face arbitrary and unreasonable,” Harper contended, and represents “an unreasonable and arbitrary intrusion in the private affairs of the citizens of Connecticut.”

Harper went on to point out that birth control had widespread public acceptance, citing a recent Gallup Poll result showing that 72 percent of respondents believed that contraceptive advice should be available to anyone who wanted it. Then he returned to the essence of his argument, seeking to persuade the nine justices of the clear unreasonableness of the Connecticut statute:

When the long arm of the law reaches into the bedroom and regulates the most sacred relations between a man and his wife, it is going too far. There must be a limit to the extent to which the moral scruples of a minority, or for that matter a majority, can be enacted into laws which regulate the sex life of all married people.

Appellants are not contending that their rights of privacy, as such, are directly protected by the Fourteenth Amendment. They do submit, however, that their privacy is mercilessly being invaded by these laws and that, this being so, it is a highly important factor for this Court to consider in weighing the hardship upon individuals against the theoretical, if not entirely fictitious, advantages of the laws as promoting public morality.

Harper reiterated the privacy point several times. “The normal and voluntary relations of spouses in the privacy of their homes is regarded as beyond the prying eyes of peeping Toms, be they police officers or legislators.” He drew a contrast between the Connecticut case and a 1952 Court decision, Public Utilities Commission v. Pollak, where a challenge to the broadcasting of radio programs on public busses was rejected on the grounds that the unwilling listeners were, after all, out in public rather than at home. The patient plaintiffs here, Harper said, “complain that it is precisely their privacy in their homes and, indeed, in the most private part thereof that is invaded. They want to be let alone in the bedroom”—an implicit reference to a famous phrase, “the right to be let alone,” that had been coined by the legal scholar Thomas M. Cooley in 1888. “They insist that marital intercourse may not be rationed, censored or regulated by priest, legislator or bureaucrat. Certainly, they contend, the ‘liberty’ guaranteed by the due process clause includes this, among the most sacred experiences of life.”

Harper closed his Poe statement with one final chorus: “These married persons contend that they have a constitutional right to marital intercourse in the privacy of their homes under medically approved conditions and under circumstances mutually satisfactory to them. What right, it may be asked, is more fundamental or more sacred?” In his much shorter, companion submission in Buxton, Harper understandably focused upon the statutes’ infringement upon doctors’ professional obligation to safeguard their patients’ lives and health, decrying them as “laws which fly in the face of science.”61

Within the Supreme Court, some six weeks passed before Poe v. Ullman and Harper’s jurisdictional statements came under active consideration within the chambers of the Court’s nine justices. In order for such an appeal to be accepted for review, at least four justices would have to vote in favor of such consideration. The State of Connecticut had made no submission, and when Harper’s documents were reviewed in the different justices’ chambers, the brand-new law school graduates who were the justices’ law clerks had a wide variety of reactions. Justice William O. Douglas’s clerk, Steven Duke, offered little reaction other than that the patients’ claims were obviously stronger than Dr. Buxton’s, while Justice Tom C. Clark’s clerk, Cecil Wray—obviously not aware of Fowler Harper’s testimony against the justice’s nomination eleven years earlier—commended the Yale professor for writing “a very persuasive brief” and picking out “very strong cases” with which to challenge the statute. The Connecticut Supreme Court’s opinion “isn’t very strong,” and overall the plaintiffs appeared to have “a good case.”

Chief Justice Earl Warren’s clerk, Murray Bring, was similarly impressed both by Harper’s “very persuasive” work and by the specific and “very well stated” facts of the patients’ cases. “If there is anything left of the doctrine of substantive due process”—the use of the Fourteenth Amendment’s “liberty” language to void a statute simply because it was an excessive and unreasonable infringement on individual freedom, a usage that the Court had largely abandoned after 1937 following enormous criticism of its extensive utilization to invalidate government regulation of business—“then it would be difficult to find a more appropriate case for an application” of it. Of course the subject of birth control, with its sexual and religious overtones, might be “difficult and ticklish” for some—such as perhaps the rather prudish Chief Justice himself—but “I think it will be some time before a case will come along in which the facts are as appealing or the counsel is as competent.”

Howard Lesnick, Justice John Marshall Harlan’s clerk, took a decidedly less sanguine view. The merits of the case, he asserted, “are clouded by the poor quality of Professor Harper’s brief,” for Harper has “largely forgotten the particular claims of his clients” in favor of “a broadside attack on the statute.” Lesnick too thought that the patients’ claims were more significant than Buxton’s, and remarked that the patients’ real interest was in being able to have intercourse. “If the interest is thought sufficient to entitle it to constitutional protection, the question is one of substantive due process.” Regarding the subject matter, he noted that “This issue, ticklish as it is, is not so bad as Naim v. Naim”—a case challenging Virginia’s criminalization of interracial marriage that the Court twice had dodged four years earlier. But, Lesnick added, the Connecticut statutes “have not been enforced against any of the appellants, and the Court could duck the whole question by finding a lack of sufficiently ripe controversy.”62

On Friday, May 20, the nine justices, meeting in the absolute privacy of their conference room, voted to hear Poe et al. and Buxton v. Ullman. Five members of the Court—Chief Justice Warren, and Justices Douglas, Harlan, William J. Brennan, and Potter Stewart—one more than necessary, voted in favor, while three justices—Hugo L. Black, Clark, and Charles E. Whittaker—voted to dismiss the appeal and thereby affirm the Connecticut court. For reasons he did not disclose, Justice Felix Frankfurter—PPLM’s informal advisor back in the late 1930s—declined to vote on whether to accept Poe.⁶³

Three days later the Court announced its acceptance of Poe and Buxton, with the twofold nature of the case meaning that three full hours—ninety minutes for each side—would be scheduled for oral argument sometime in the fall of 1960. PPLC held its annual meeting the day after the announcement, and while everyone was pleased, there was considerable mystification as to why Frankfurter had recused himself. Loraine Campbell told the Connecticut activists that neither Frankfurter nor his wife had ever contributed to PPLM, and Fowler Harper, as well as Harriet Pilpel, turned their attention toward coordinating the content of the different but complementary briefs that would be due in Washington by late August. Pilpel’s amicus brief for PPFA would be responsible for showing why sexual abstinence was not a reasonable alternative to the use of contraception, while Whitney North Seymour’s on behalf of prominent doctors would emphasize physicians’ professional responsibilities to their patients. Connecticut’s Raymond Cannon, in a very unusual move, refused to grant the state’s pro forma consent to the filing of the PPFA and doctors’ briefs, hence requiring those amici to obtain the Court’s formal approval for their submissions.64

The Supreme Court’s acceptance of Poe drew some press attention. The New York Herald Tribune editorially welcomed the action and said it looked forward to the high court voiding a statute that “is a clear infringement of both professional and personal liberty” and that makes “the particular doctrine of the Catholic Church binding, on penalty of imprisonment, on persons of all faiths.” A Catholic priest writing in a relatively obscure religious journal stated that “a Catholic can justifiably favor repeal of the Connecticut and Massachusetts anti-contraceptive laws,” and Newsweek magazine ran a story reporting his remarks. Several weeks later, when a Catholic journalist’s monograph critiquing the statutes was issued by a small think-tank, Newsweek ran yet another story and an Associated Press dispatch highlighting his work appeared in almost all Connecticut newspapers.⁶⁵

In early July the U.S. State Department offered Fowler Harper a four-month visit to Africa as a visiting legal consultant to several different countries, and with some reluctance Harper wrote to the Supreme Court Clerk’s Office to request that the oral argument in Poe be postponed until sometime after he returned from the trip in late January of 1961. Harper’s friend Gene Gressman warned that he had “heard some discouraging comments about the ultimate outcome from someone who spoke to one of the outgoing clerks,” since a new group of fresh young law school graduates arrived at the Court each summer, but work on all the various briefs proceeded apace. ACLU Assistant Legal Director Melvin Wulf had undertaken some initial research for the ACLU/CCLU amicus brief, but Yale’s Tom Emerson had volunteered that his wife Ruth Calvin Emerson, a 1950 Yale Law School graduate, was interested in helping, and by late August both Ruth Emerson and Wulf had completed revised drafts of parts of the brief.⁶⁶

By mid-September all of the Supreme Court briefs had been completed and Fowler and Miriam Harper were off to Africa. Katie Roraback and Ray Cannon faced off before the Connecticut Supreme Court for the oral argument of Trubek v. Ullman on October 6, and within the following two weeks the U.S. Supreme Court—with Felix Frankfurter continuing to recuse himself—formally approved Harper’s request for Poe’s postponement and also officially accepted all of the amicus briefs for which Cannon had refused to give Connecticut’s consent. Cannon had told the Connecticut court that David and Louise Trubek’s problem was not the 1879 statute but the fact that they sought to “avoid some of the responsibilities of the marital status,” but the national climate regarding issues such as birth control continued to liberalize, with Catholic Democratic presidential nominee John F. Kennedy telling an audience of Protestant ministers in Texas that he desired an America “where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials.” A major medical magazine, in a story picked up by national newspapers, quoted Connecticut doctors as explaining how the state law actually affected only those citizens too poor to pay private physicians for diaphragm fittings, but a prominent Catholic periodical, reacting both to Poe and to Kennedy’s comments, acerbicly complained that “Unfortunately a growing number of Americans look upon contraception as their inalienable right.”67

Fowler Harper’s Supreme Court brief expanded upon but closely paralleled the arguments he had emphasized in his initial jurisdictional statement six months earlier. He spoke of how the Connecticut statutes “invade the privacy of the citizen,” “the privacy of the home” and “regulate the private sex life of all married people”—a slight emendation of his earlier language, where the adjective “private” had not appeared. He repeated his insistence that “These spouses want to be let alone in the bedroom,” noted the antecedents of that phrase, and reiterated in slightly altered wording his contention that married couples have “a constitutionally protected right to marital intercourse in the privacy of their homes.” Harper concluded by charging that the Connecticut provisions “interfere mercilessly with the most intimate and sacred experiences in life.”

Neither the Seymour amicus brief, presented on behalf of sixty-six physicians, nor the PPFA brief, submitted in the names of Ernst and Pilpel, offered any especially notable arguments. Ruth Emerson and Mel Wulf’s ACLU/CCLU brief, however, expanded significantly upon the privacy emphasis articulated by Harper, and offered an explicit Fourteenth Amendment due process liberty basis for their contentions: “the Fourteenth Amendment protects persons from invasions of their privacy by the states. The Connecticut statutes in issue, on their face, seek to regulate an aspect of marital conduct that is inherently private and beyond the reach of government.” They cited a 1949 Fourth Amendment search and seizure decision, Wolf v. Colorado, written by Frankfurter, as their primary privacy precedent. Wolf had held that “security of one’s privacy against arbitrary intrusion” is “‘implicit in the concept of ordered liberty,’” a landmark constitutional phrase and standard signifying a right of such especially significant importance that the Supreme Court would protect it under the Fourteenth Amendment’s “liberty” from any infringement by a state. Emerson and Wulf also quoted former Justice Louis D. Brandeis’s 1928 adoption of Thomas Cooley’s “right to be let alone” expression, and then presented the core of their argument:

The invasion of privacy here is two-fold. First, the statute on its face restrains married couples from employing the most effective means of contraception when engaged in sexual intercourse. Secondly, as applied, the statute confronts appellants with the choice of engaging in sexual intercourse without contraceptive devices, thereby immediately threatening the life and health of the female spouses, or of abstaining entirely from sexual intercourse.

“Marriage and the family are the foundations of our culture, and the focal points about which individual lives revolve,” they went on. “No other rights are entitled to greater privacy than that normally bestowed upon the acts of intercourse and procreation.”

Thirty years later, in his midsixties, Mel Wulf archly insisted that writing the Poe brief had been particularly compelling. “I was then a single man, living in the Village, and sexually active if not promiscuous … I had a personal commitment to birth control, and also abortion.” The brief, however, understandably stressed marital and family values to the utmost. Emerson and Wulf maintained that the Connecticut statute should evoke “the same quality of outrage to civilized sensibilities” that Frankfurter had enunciated in an earlier case that had denounced compulsory pumping of a drug suspect’s stomach in order to secure evidence. They also noted that there were at least four additional Supreme Court precedents, reaching well beyond the search and seizure context, where the Court at least implicitly had acknowledged “a private right to conjugal or domestic matters,” including two—Meyer v. Nebraska and Pierce v. Society of Sisters—which expressly recognized “marriage and the family as the ultimate repository of personal freedom.”68

With Harper in Africa and the case on hold, the final months of 1960 passed relatively quietly. Loraine Campbell continued to gripe about PPLC, but Pilpel wrote Estelle Griswold a commendatory letter to say that “You have done such a wonderful thing in making these cases possible.” Estelle declined the honor, insisting that “my part has been a secondary one. Had it not been for the professional courage of Dr. Buxton and Fowler Harper there might not have been a lawsuit for years to come. All I have done is to coordinate and help raise the funds,” which now totaled some fifteen thousand dollars in legal expenses. “In fact, at all times, our League has tried to avoid publicity in connection with the cases to give credit for independent action on the part of the litigants.”

Estelle was “reasonably sure of success” once the Supreme Court did hear Poe, and she kept up a regular correspondence with Harper in Africa, seeking his instructions as to whether an immediate appeal of Trubek to the U.S. Supreme Court would be worth the additional costs once the Connecticut Supreme Court issued its anticipated decision. Harper immediately replied that he could compose the necessary documents himself, even in Africa, and he also arranged to review Ray Cannon’s brief in defense of the Connecticut statutes once it was filed with the Court in mid-October. Cannon’s modest seventeen-page effort emphasized the many occasions on which the state legislature had declined to alter the law before attempting to justify the statute’s continued validity. “There is no obligation that the most modern or scientific remedy be chosen” by the legislators as a lawful practice, he insisted, for “it seems obvious that the Connecticut Legislature, speaking for the people of Connecticut, believes that the indiscriminate use of contraceptives will have an eroding effect upon the moral standards of its people.” He disparaged Harper’s brief by contending that “for the most part appellants’ argument is sociological and physiological rather than legal,” and ended by objecting to a passing reference Harper had made indicating that “artificial devices to prevent conception are available in Connecticut to unmarried persons.”69

Fowler informed Estelle that Pilpel’s notion that they ought to file a reply brief in answer to Cannon’s contentions was utterly unnecessary, and when the Connecticut Supreme Court, as expected, unanimously rejected Trubek on November 15, Fowler was still hoping that it might yet be combined with Poe in time for U.S. Supreme Court oral argument. PPLC had agreed that a repeal bill, written by Katie Roraback and ostensibly sponsored by the CCLU, would be introduced in the 1961 Connecticut legislature, and in late January two female representatives, Katherine Evarts of Kent and Evelyn Fisher of Oxford, put one forward. Various news stories and articles, including a critical essay on Harper’s and the ACLU’s briefs in the Yale Law Journal, all highlighted the upcoming high court consideration of Poe, and early in the new year the National Council of Churches explicitly condemned anticontraception statutes as violations of “the religious and civil liberties of all citizens.” Fowler Harper returned from Africa in mid-January, and just a few days later he received official notification that the Supreme Court oral argument of Poe had been scheduled for February 27.70

In preparation for the Poe hearing, several of the nine justices, as was their common practice, had one or another of their young law clerks prepare lengthy private memos analyzing the issues and the briefs that had been submitted in the case. Charles Fried, a 1960 Columbia Law School graduate who was one of Justice John Marshall Harlan’s two clerks, prepared a Poe memo that expanded upon the critical comments Howard Lesnick had offered Harlan ten months earlier. “Neither one of the parties gives us any help in deciding this case,” Fried began. “Fowler Harper’s jurisdictional statement is execrable and so is his brief on the merits—it misses the whole point that can be made for his position. The state, perhaps wisely, says as little as possible, on a sit-tight theory.” Nonetheless, Fried enthusiastically agreed with Harper’s basic position: “the right to privacy is one which enjoys specific constitutional sanction,” particularly with regard to “the right to privacy of the home being the purpose behind” the Fourth Amendment. Hence “a married couple, enjoying that status in the eyes of the state, in their intimate and specifically marital relations may follow their inclinations and consciences without interference” by the state. It was undeniable that “the substantive right” at issue here “is one of privacy,” particularly with regard to the home, and that “individual married couples have a right to engage in marital relations in the privacy of their own consciences and free of the intrusion of the criminal law.” Connecticut “cannot say,” Fried went on, “that a law intruding the criminal law into the privacy of the marital bedroom is just like a law forbidding adultery, fornication or homosexuality.” Indeed, as was well known, Connecticut’s “use” statute was utterly unique, and “If reasonableness is to be the test where the state admittedly encroaches on substantive rights, it is difficult indeed to conceive of more conclusive evidence of unreasonableness.”

Nonetheless, the case was not without visible problems. First off, one could argue that as yet “there has been no showing that there is a danger of enforcement” of the Connecticut statute. Similarly, “One cannot escape the feeling that at least as to the complaint of the couple here that this is a totally unnecessary piece of litigation,” and as to Dr. Buxton “clearly there is no such right” as a physician’s privilege “to practice his profession as he sees best” without any state regulation. Any focus on the specific facts of Poe, Fried felt, would lead to a conclusion that “The only possible argument that can be made is that married couples have a right to engage in marital relations without the fear—in some cases—of death or serious illness.” However, “the trouble with this argument is that it assumes what is to be proven: that married couples have some kind of innate right to marital relations, and that if the choice must be between contraception on one hand and abstinence or serious danger on the other that the couple has the right to resort to contraception. To my mind,” Fried concluded, “this is a much more debatable proposition” than the other, decidedly broader answer that the Court could announce, and that Fried himself expressly recommended: that “married couples have a right to privacy in their intimacy.”71

Justice William J. Brennan’s clerk for Poe, however, offered a radically different—and far more skeptical—evaluation of the case than had Charles Fried. Richard S. Arnold, a 1960 Harvard Law School graduate, had, like all Brennan clerks at that time, been selected for the post by Harvard professor Paul Freund without ever having met or spoken with the justice himself. Prior to Harvard, Arnold had been an undergraduate at Yale and an active member of its Episcopal parish; years later he would happen to volunteer that perhaps his favorite Yale instructor had been a history graduate student whose wife he also knew through her job at the church: Hector and Anne Kinloch.

But if Richard Arnold had of course never heard of “Harold and Hanna Hoe,” his two long memos to Justice Brennan were decidedly unfavorable to “Paul and Pauline” Poe. While Arnold believed there was no question that the appeals were rightfully within the Court’s jurisdiction, he nevertheless seriously doubted whether Poe and Buxton were, in an important but elaborate judicial term of art, “justiciable” and hence worthy of a decision on the merits. The problem was the sketchiness of the cases’ earlier development: “There was no trial, no witnesses were heard … no findings of fact were made.” Yet “on this record the Court is asked to declare that the Connecticut legislature has exceeded its power,” and the record was simply “not all one might wish on which to base a decision of a difficult constitutional issue,” particularly in the absence of “the refining and sharpening influence of an adversary trial.” It was unclear “just how much of an interference with individual liberty does this law entail,” and the record was also silent on the question of whether the “rhythm” method of trying to avoid pregnancies was distinctly less dependable than diaphragms or other prohibited devices. “If they exceed in reliability the next best method by only a small margin, then the choice which Connecticut has made may be more reasonable than plaintiffs would have us believe.”

Arnold had a further objection, however, one that literally had not dawned on Harper, Roraback, Cannon, or anyone else who so far had been involved with Poe. If the Connecticut courts had erred in sustaining Cannon’s objections to the suits, Arnold told Brennan, then apparently, under Connecticut’s procedural rules, should the U.S. Supreme Court reverse the decision below, such a holding would then require Harper and Roraback to go to trial to prove their original contentions, rather than immediately and directly void the 1879 law. Hence the Supreme Court appeal “is somewhat premature. Since there is going to be a trial anyway, if appellants are to succeed, why not have the trial before this Court decides the constitutional issue, instead of after.” In short, Arnold said, the high court should “put off a decision” and delay “the evil day when this Court must tell Connecticut whether its law is valid.” “This is no hardship for the appellants,” he added, “since if we reversed at their request they would have to go to trial on remand anyway.”

Several days later Arnold gave Brennan a second long memorandum focusing on the constitutional questions in Poe and arguing that if the Court did reach those merits, “the skimpiness of the record will probably compel it to uphold the statute.” But Arnold readily conceded that “on a properly constructed record a holding of unconstitutionality would be required,” for while Connecticut could cite a valid interest “in prohibiting extramarital intercourse” as underlying the statute, “the appellants have on their side of the balance not only the general interest in marital privacy and autonomy, but also their particular interests in health and life.” In the final analysis, “when physical harm and possible death is thrown into the balance, I think the statute becomes unconstitutional as applied.”72

Fowler Harper had agreed to share a portion of his oral argument time with Harriet Pilpel, and on Monday morning the two attorneys, accompanied by Katie Roraback, Pilpel’s associate Nancy Wechsler, Bea Hessel, Estelle Griswold, Miriam Harper, and the Harpers’ close friend Betty Phillips all arrived as scheduled at the Supreme Court. Lee Buxton was absent since he was spending the spring in Geneva, but immediately upon everyone’s arrival at the Court, Harper received surprising and troubling news: the oral argument was being postponed for two days because Justice Frankfurter was absent due to laryngitis. But Frankfurter had explicitly not taken part in any of the preliminary decisions regarding the case, so did this now mean both that he had changed his mind regarding recusal, and that he was especially eager to take part? Harper was both perturbed at the delay, and worried about what Frankfurter’s conduct might mean. Hoping to get a better understanding of what was going on, in the absence of any explanation from the clerk’s office, Harper did a very highly unusual thing for counsel in a Supreme Court case: remembering that one of Justice Potter Stewart’s clerks, Jerry Israel, was a former Yale Law School student whom he had known in passing, Harper went to Stewart’s chambers, asked for Israel, and queried the highly surprised clerk as to whether he had any idea what was going on. Not surprisingly, Israel didn’t.

In fact, at about eight p.m. on Sunday evening the 26th, Frankfurter had called Chief Justice Warren at home to request the postponement on account of his laryngitis, and the Chief had agreed. The involuntary two-day delay did offer Pilpel and the Connecticut group, especially Griswold, Roraback, and Hessel, a much better opportunity to get to know each other in a friendly, nonadversarial setting, and Pilpel’s deputy, Nancy Wechsler, later mused that perhaps the unplanned and enforced camaraderie occasioned by the Supreme Court delay went a good way toward erasing most of the tensions that previously had so heavily colored the PPLC-Pilpel interactions.73

By Wednesday, March 1, Felix Frankfurter had his voice back, and at two forty-five p.m. that afternoon Poe et al. and Buxton v. Ullman were called for oral argument before the full bench of nine justices. Fowler Harper, in an impressively strong and clear voice, began his presentation by offering understated but extremely powerful descriptions of “Jane Doe’s” and “Pauline Poe’s” medical situations. Justice Potter Stewart interrupted with the first question, asking if he was correct in thinking that no Connecticut statute aside from the accessory one prohibited the sale or prescription of contraceptive articles, and after Harper answered yes, Stewart followed up by asking whether Harper was challenging Connecticut’s use statute only in the context of women facing serious health threats. Harper, slightly off stride for the first time in the hearing, replied that the plaintiffs were challenging the statutes both “on their face” and as applied, and then Felix Frankfurter jumped in to querulously ask Harper why no First Amendment free speech argument was being made on behalf of Dr. Buxton. Harper parried, conceding that that was true, but Frankfurter pursued him: “And why is that? I don’t understand it.” Harper paused for a considerable time, explained that there were other cases, the clergy ones, still pending below, and then gently conceded that perhaps a speech contention should have been included in the pleadings, but that since it was not, he could not argue it now. Another justice quietly interjected that the Fourteenth Amendment also prohibited state interference with constitutionally protected speech, but Frankfurter again broke in, telling Harper “It’s not for me to decide how you should argue.” Laughter rippled through the courtroom, and Harper moved on to emphasize “the liberty of the marital relation” and how “these laws mercilessly invade the privacy of a married couple.” Potter Stewart interrupted to ask whether freedom to practice one’s religion was involved, and Harper answered yes while noting that these plaintiffs had not made that contention.

Harper’s argument proceeded without interruption for some ten minutes before Justice Harlan asked him how many prosecutions a year there were under the Connecticut statutes. Harper responded that he did not know, and Stewart then asked, “Is the law really enforced?” Harper responded somewhat lamely than “I’m ignorant of the extent to which the law is enforced … so far as I know it has never been enforced against a person who used a contraceptive.… Police do not peek into people’s bedrooms to see whether they’re using contraceptives … I know of no prosecution of an individual for use.” Then he recovered and pointed out how, since the Nelson decision, “no public or private clinic for the purpose of advising on contraception” had operated in the state. “The people in Connecticut who need contraceptive advice from doctors most—the people in the lower income brackets and lower educational brackets—the people who need it most, do not get it, because there are no clinics available.” Justice Brennan asked Harper whether there were any similar statutes elsewhere, and after describing the Massachusetts one, Harper concluded his initial forty-five minutes and yielded to Harriet Pilpel.

Pilpel, relying heavily on her notes, spoke almost exclusively to medical considerations. Some eight minutes passed without a single question from any justice until Stewart queried her about what the medical view of contraception might have been in 1879, and Pilpel returned to her disquisition for another long stretch before Frankfurter inquired about Connecticut’s sterilization law and opined that perhaps Buxton should have sterilized “Jane Doe” and “Pauline Poe.” Pilpel pointed out that sterilization was irreversible, and then Frankfurter, joined by Justice Whittaker, began peppering her with questions as to whether doctors were more knowledgeable than legislators. Pilpel acknowledged that “we recognize that we have the heavy burden in this case,” and then further conceded that “my argument is restricted to these cases” of Poe and Doe’s specific medical conditions alone.

Just before four p.m. Raymond Cannon began his argument in defense of the Connecticut statutes. A far less effective speaker than Harper, or even Pilpel, Cannon floundered from point to point before Chief Justice Warren interrupted him with a pointed question as to whether Connecticut rightfully could deny life-saving treatment to someone in “Jane Doe’s” situation. “It is our view,” Cannon replied, “that it is the problem primarily for the legislature to determine what is the greater good and how to accomplish the greater good.” That answer provoked both Warren and Potter Stewart, who sarcastically told Cannon that that was like telling a patient that they had appendicitis and would die unless it was removed, but that appendix removals were not allowed. Then Warren followed up, expressing amazement that the law, in a situation such as Jane Doe’s, could prohibit her from receiving appropriate medical treatment. Cannon responded that “There are proper ways to prevent conception through the natural means which they call rhythm.… The legislature has adopted one system. The legislature is free to adopt whichever system it sees fit, provided it’s reasonable for the purpose for which the law is intended.” Felix Frankfurter drew Cannon into a colloquy about popular government and legislators, observing that “in a democracy they have a right to elect even ignorant people” to office. Frankfurter wondered whether there might be some “outside authoritarian power” that was coercing the Connecticut legislature to adopt a minority preference, and Cannon forthrightly declared that “I don’t believe there’s any outside power in Connecticut influencing the legislature.” Justice Brennan asked whether Cannon regarded the sale of certain articles for the prevention of disease to be legal in Connecticut, and Cannon said no, for any use of such articles was a violation of the 1879 law. Cannon added that he knew of at least two unreported cases some years earlier where store owners had been arrested for having contraceptive vending machines on their premises. Justice Hugo Black got Cannon to readily acknowledge that the law indeed prohibited Dr. Buxton from saying some things to patients that he professionally might want to, and then, at four thirty p.m., the Court adjourned for the day.

Shortly after noontime on Wednesday, March 2, the oral argument resumed with Felix Frankfurter all but monopolizing Ray Cannon’s remaining time. He asked Cannon whether contraceptives were widely available in the state, and when the assistant attorney general replied that “I have no personal knowledge of this,” the justice quipped that “I wasn’t attempting to explore your personal knowledge.” Frankfurter pursued the theme that actual convictions under the use statute were necessarily nonexistent, musing that “we’re talking about a theoretical thing here, aren’t we?” Cannon gently demurred, saying “It may be academic, but it has some effect,” and a surprised Frankfurter responded with a sharp “What?” Cannon replied that the statute had a deterrent effect in protecting the “moral qualities” of Connecticut citizens. Frankfurter offered Cannon several opportunities to articulate additional purposes for the statute, and when Cannon failed to volunteer what Frankfurter was anticipating, the justice explained to the harried attorney that encouraging population growth was obviously a major premise for the law. John Harlan asked Cannon whether “Connecticut can pass a statute that impinges on the privacy of the marriage relationship,” and Cannon responded that since marriage of course effected the morals of a society, that the state necessarily could regulate the relationship.

Shortly after one p.m. Fowler Harper resumed his argument for the final twenty-five minutes of the hearing. He emphasized that contraceptive articles, including diaphragms, were quietly available for purchase in Connecticut pharmacies, and Justice Stewart, seemingly in agreement, interjected that “this may all be an abstract attack on the law” and that “the law has no impact.” Harper tried to back pedal rapidly, declaring that “The law certainly has an impact on Poe and Doe, and under it no clinics can function.” Justice Brennan immediately broke in, asking “Isn’t the operation of clinics what’s at stake here really?” Harper indicated yes, and just as the final time expired Brennan observed, as much to himself as to Harper, that “I take it that the Poes and Does can get what they need almost anyplace in Connecticut.”74

The PPLC and PPFA contingent were unanimously impressed with what a superb job Fowler Harper had done, especially in handling Justice Frankfurter’s many challenges, but they acknowledged to each other that the outcome was far from certain. Savvy press observers, including a UPI reporter and a Time magazine correspondent, however, frankly predicted, as the latter writer put it, that the peppery justice “had laid the basis for an opinion that the case was hypothetical” and hence nonjusticiable. And when the nine justices convened on Friday morning, March 3, to discuss and vote on Poe v. Ullman and the other cases that had been argued earlier that week, the journalists’ prognostication proved all too prophetic.⁷⁵

Chief Justice Earl Warren presided at each of the Court’s private conferences and spoke first. PPLC’s Bea Hessel had thought during the oral argument that the white-haired Chief Justice had “the mien of a loving father,” and his warm manner and kind-hearted nature made him a popular figure among most of his brethren and among law clerks and court employees. Many of his clerks across the years appreciated that the Chief Justice was very much a family man and a traditionalist, someone who was discomforted not only by the pornographic materials which the court often had to review in obscenity cases but also by any discussion concerning sex. Some of the clerks would acknowledge as well the Chief’s relative disinterest in doctrinal technicalities, but clerks who watched carefully also noted Warren’s long private visits to Justice Brennan’s chambers the day before each of the Court’s weekly conferences.

Warren began the discussion of Poe v. Ullman by observing that he could not call the Connecticut statute unconstitutional on its face, for to do so would represent a return to the largely abandoned doctrine of substantive due process. Just as importantly, the plaintiffs had made the justices “guinea pigs for an abstract principle,” and Warren did not want the Court to decide “contrived litigation” when contraceptives could be purchased in any Connecticut drugstore and where there was no indication that the 1879 statute had ever or would ever be enforced. In short, Poe might well fail to meet the constitutional requirement that the Court decide only real “cases or controversies.” Additionally, there were undeniable problems with the record: could a doctor be convicted under the accessory statute without proof of a patient’s use of a contraceptive, and was or was not the sale of such articles in Connecticut actually legal. Harper and PPFA’s medical evidence was in no way dispositive, and, all in all, whether or not the 1879 statute was unconstitutional as applied could be determined only after a trial had generated extensive evidence and findings. In short, the Chief would vote to dismiss the appeal and return Poe to the Connecticut courts.

The most senior associate justice, Hugo L. Black, spoke next. An Alabama native and former U.S. Senator, Black was an enthusiastic tennis player who deeply enjoyed serving on the court. Blessed with an encyclopedic memory and deeply committed to a literalist judicial philosophy that lent both a consistency and a predictability to his votes, Black relied less upon his two law clerks for help in drafting opinions than perhaps any other member of the court. An outgoing man who was not shy about trying to persuade his colleagues to support his own intense views, Black nonetheless believed that philosophical differences should not interfere with friendly relations. His years of disagreements with Frankfurter had created some “real distance” between the two men, but when a clerk once referred to the other justice as “Felix,” Black firmly reprimanded him for such implicit disrespect. Black was generally viewed as a liberal, but his closest friend on the court was the patrician John Harlan, whom many observers pigeonholed as a colorless conservative. Black like Warren was something of a prude on sexual matters, and while some clerks had ambivalent if not critical feelings about the justices for whom they worked, Black’s almost always felt that their justice was a wonderful man with an almost fatherly interest in furthering their appreciation of the law.

On Poe v. Ullman, Black began by noting that ten months earlier he had voted to affirm the Connecticut court without hearing the appeal. He still felt that way with regard to the Poes and Jane Doe, Black explained, because it was not appropriate for the judiciary to review the reasonableness of Connecticut’s policy against any use of contraceptives. Personally, Black volunteered, it made no difference to him whether people used such devices, but the Court should not use the Fourteenth Amendment’s due process clause as a vehicle for second-guessing legislative choices on a topic where the Constitution set forth no explicit barrier. Regarding Dr. Buxton, however, Black felt very differently, for a doctor was entitled under the First Amendment to talk to his patients about everything or anything without any statutory interference or punishment. Black’s absolutist view of the First Amendment’s protection of speech was well known and well understood by his brethren, and his explanation that no doctor could be prosecuted as an “aider and abettor” did not surprise any of his colleagues. With regard to “the ladies,” however, Black would affirm.

The third justice to speak was the redoubtable Felix Frankfurter. An intense proponent of his views, especially with regard to the indispensable need for judicial restraint, Frankfurter’s stubborn persistence had visibly alienated both Warren and Brennan. Never close to Black, some clerks also believed that Frankfurter was barely on speaking terms with William O. Douglas. Frankfurter’s own clerks, with only a rare exception, were—like Brennan’s—selected for him by Harvard law professor Paul Freund, but Frankfurter regarded every clerk in the court as a potential recruit and never hesitated to discuss substantive issues with other justices’ clerks. Some clerks viewed Frankfurter as a troublesome “busybody” or “perverse character” who was sometimes openly “patronizing” toward one or another of his less-gifted brethren, but more than two decades of service on the Court had done nothing to dilute Frankfurter’s intellectual intensity or personal aggressiveness.

On Poe, Frankfurter’s remarks in conference followed naturally from his persistent queries during the oral argument. The Chief Justice was correct that the appeal should be dismissed, Frankfurter began, for to reach the merits in this sort of a declaratory judgment action with such a minimal record would run the risk of issuing an improper, advisory opinion. He could not imagine, Frankfurter went on, any doctor not giving contraceptive advice for fear of going to jail; what the plaintiffs clearly wanted was authorization to open clinics. Instead they should take the risk of going to jail and then bring the case to the Supreme Court if they were actually prosecuted. Additionally, Frankfurter said, how could this Court simply rule that “rhythm” was no good?

The next most senior justice, William O. Douglas, went after Frankfurter with alacrity. Indeed, he had been battling angrily with Frankfurter, among others, for all of his more than twenty years on the high court. Acknowledged as truly brilliant even by those who personally detested him, Douglas nonetheless was viewed as an intellectually lazy underachiever even by those who considered themselves his relative friends. Far and away the most reclusive and aloof of the justices, Douglas would never lobby any of his colleagues for support in a case and often would not even say hello to clerks whom he passed in the hallways. Only Douglas had one rather than two clerks, and almost without exception Douglas would scrawl out the first—and sometimes the only—draft of an opinion on a legal pad without any preparatory work by the clerk. Some years Douglas would hector the young man, others he would all but ignore him; among clerks from other chambers the almost unanimous impression was that William O. Douglas was “not a very nice human being.”

Frankfurter, Douglas bluntly declared, was wrong on all counts. Poe was a legitimate declaratory judgment action, and undeniably involved a valid case and controversy. Moreover, the 1879 Connecticut statute was clearly unconstitutional on its face. The appeal should not be dismissed, and the Connecticut court’s decision should be reversed.

Tom C. Clark, the fifth justice to speak, was a Texan who had been Harry Truman’s Attorney General before being nominated and confirmed as a justice despite Fowler Harper’s 1949 testimony against him. Personally popular among his colleagues and among the clerks, Clark was viewed by many of the clerks as “a wonderful politician” who was miscast as a Supreme Court justice. Some clerks judged him to be “by far the weakest intellect on the Court,” but he nonetheless was often a crucial swing vote, and he was on especially good terms with the similarly personable Warren. On Poe, Clark’s comments were simple and highly succinct: the suit did not meet the constitutional case or controversy requirement, and the appeal should be dismissed.

Next came John Marshall Harlan, the conservative and understated New Yorker who nine years earlier, while still in private practice, had been recommended to PPLC as a possible attorney for a declaratory judgment action. A justice for six years now, he was both a careful craftsman and a consistent yet thoughtful conservative—“a Frankfurter without the mustard,” one clerk from another chambers quipped. Among the clerks, Harlan was perhaps the most respected justice of all, and he was personally close to both Frankfurter and the court’s most junior member, Potter Stewart.

“We have no business dismissing these cases,” Harlan began. The suits were not fictitious or feigned, they met the case or controversy standard, and there was no uncertainty as to how the Connecticut court had construed the 1879 law: it prohibited the contraceptive practices that the women plaintiffs had been told by their doctor were imperative. On the merits, Harlan said, it was not a close call: the statute was unconstitutional on its face, and indeed was “the most egregiously unconstitutional act I have seen since being on the Court.” For someone of John Harlan’s quiet and sober style, such a forceful and passionate statement was extremely unusual. The oral argument, Harlan went on, had submerged the real constitutional questions. He could not, like Black, vote to strike the Connecticut law on First Amendment grounds, but for him the Fourteenth Amendment’s due process clause, protecting “life, liberty, or property,” against state action, had substantive content apart from the specific provisions of the first eight amendments that the Court sometimes had “incorporated” to apply to the states through the language of the Fourteenth. And due process liberty, Harlan continued, protected “the right to be let alone.” Despite states’ broad powers to legislate in the area of health, the due process clause imposed limits, and a state could not use any and all means to regulate marital relations. The Connecticut law, he reminded his colleagues, was a “use” statute and as such was uniquely different from laws regulating the sale or prescription of such articles. Nothing could be more offensive to the concept of a “right to be let alone” than interjecting the criminal law into the privacy of the marital relationship. Police officers should not be able to get a search warrant to see if contraceptives could be found, and all other searches would pale in comparison to those that could follow from the Connecticut law. No matter what kind of record this case might have, the statute was unconstitutional on its face.

Justice William J. Brennan, the Court’s only Roman Catholic member, had already told his two clerks, Richard Arnold and Dan Rezneck, after the oral argument that he was definitely inclined to agree with what appeared to be the majority of his colleagues—and Arnold’s earlier recommendation—that Poe v. Ullman should be dismissed for failure to state an adequate controversy or to present a full and detailed record. They and other clerks were well aware of Brennan’s special closeness to the Chief Justice, and Brennan’s warm and approachable demeanor made him, like Tom Clark and Warren, one of the Court’s most personable and popular justices. Generally a quiet figure at oral arguments, Brennan’s remarks about Poe at the Friday conference were brief and succinct: it simply failed to meet the case or controversy standard.

Charles E. Whittaker similarly had little to say. A justice for four years, Whittaker had been a Kansas City corporate attorney before being named to the federal bench, and then elevated to the Supreme Court, largely because of his close friendship with the president’s brother, Arthur Eisenhower. His own clerks viewed Whittaker as a quiet and “extremely conscientious man” who unfortunately was quite uncomfortable with and hence very indecisive about many constitutional questions. As a result, he had become a particular target of Felix Frankfurter’s incessant lobbying, and a wide range of clerks who had witnessed Frankfurter’s behavior toward the insecure Kansan felt that the situation was unpleasant and offensive. Whittaker’s chambers were next to those of Hugo Black, and while Black too would energetically woo him, Whittaker’s clerks thought that Black came as close to being Whittaker’s friend as anyone on the court. Black’s clerks watched with particular chagrin as Frankfurter “hounded and hounded” the neighboring justice, and when an unnerved Whittaker finally gave up and resigned from the Court a year later, more than one clerk readily concluded that Frankfurter unintentionally had “chased poor Whittaker off the Court.” But for Poe v. Ullman, Whittaker said, Frankfurter was indeed correct: Poe did not satisfy the case or controversy requirement.

The Court’s ninth and most junior member was Potter Stewart, a forty-six-year-old Ohio Republican who was in only his third year as a justice. Already close to John Harlan, whose chambers were right next door, Stewart too was a moderate conservative with a clear attraction to issues of jurisdiction and procedure. Although he never failed to win the respect of his own clerks, in other chambers during Stewart’s early years on the high court many of the young assistants viewed him as something of a cipher.

On Poe, Stewart’s comments echoed those of Harlan. It would be “cynical,” he remarked, “to dismiss a case on the grounds that a law will not be enforced. A law is a law, and it is not a dead letter,” especially when “as a practical matter there’s no clinic in Connecticut.” On the constitutional merits, Stewart said, he also fully agreed with John Harlan.

The discussion concluded, the tally was relatively clear: there were at least five clear votes—Warren, Frankfurter, Clark, Brennan, and Whittaker—for dismissing the appeals, and only three justices—Douglas, Harlan, and Stewart—who would reverse the Connecticut court and void the statute. Hugo Black apparently could be counted as a sixth vote for the majority in Poe, but certainly not in Buxton. Early Monday morning, three days later, when the Chief Justice’s assignment sheet was circulated to all chambers, the opinion for the Court in Poe v. Ullman was assigned to the justice who had almost recused himself: Felix Frankfurter.76

Before the day was out, Frankfurter had jotted down a short but internally complex outline of how he wanted his clerks to go about drafting a Poe v. Ullman opinion, emphasizing that there should be a comprehensive canvassing of prior decisions in which the Court had similarly declined to reach the merits of a case that had been appealed. Frankfurter perchance had three clerks, rather than the usual two, for the 1960–1961 term, and that relative luxury offered him an opportunity that he chose to take full advantage of with Poe: he gave his brief memo to both Dan Mayers, a Harvard Law School graduate who had been chosen for him by Paul Freund, and to Anthony “Tony” Amsterdam, a University of Pennsylvania Law School graduate and the special third clerk whom Frankfurter had taken on because of truly exceptional reports that Amsterdam was as brilliant a law student as anyone anywhere had seen in some time. Frankfurter’s instructions to Mayer and Amsterdam were unusual but not wholly out of character: both of them should work on preparing separate drafts of a Poe opinion in line with his framework, and, until the first of them had finished, they should not share or discuss their work with each other or with their third colleague, John French.⁷⁷

At much the same time that Felix Frankfurter was outlining Poe’s demise, Fowler Harper was pondering how the Court’s obvious doubts about whether there actually was any realistic threat that the Connecticut statute would be enforced against anyone, doubts that had been so manifest in the repeated questions voiced during the oral argument, might be refuted and disproved. Remembering that the last reported effort to enforce the 1879 law was of course State v. Nelson, and knowing that the very same William B. Fitzgerald who had prosecuted Nelson was still, twenty-one years later, the State’s Attorney at Waterbury, Fowler Harper had an idea. He picked up the phone and called J. Warren Upson, who also, like his longtime friend Bill Fitzgerald, was still a leading figure on the Waterbury legal scene. Now fifty-seven years old, Warren Upson had been out of touch with the PPLC for over a decade, but he was immediately willing to try to help with Fowler Harper’s request: would Bill Fitzgerald be willing to execute a formal affidavit affirming that now, in 1961, he would pursue enforcement of the 1879 statute against any birth control clinic just as he had back in 1939–1940?

Wednesday, March 8, Warren Upson had “a long conference” with Bill Fitzgerald about their long-ago settlement of State v. Nelson two decades earlier, and while Fitzgerald affirmed that his position remained unchanged from what he had said in his formal statement in court on the day that the criminal charges against Clara McTernan and the two young doctors had been nolled, Fitzgerald nonetheless was unwilling to execute an affidavit for Fowler Harper to send along to the United States Supreme Court. Mulling the alternatives, Warren Upson selected the next best option: he unearthed a three-page copy of the court reporter’s transcript of Fitzgerald’s remarks back on April 2, 1940, and executed his own affidavit. He identified himself as counsel for the Nelson defendants and affirmed that the 1939 charges “were instituted in no sense with the prior knowledge of the accused and there was no pre-trial acquiescence by the accused that said actions would be instituted to test the constitutionality of the statutes in question.” He immediately sent both documents off to Harper, who in turn sent them at once to the Supreme Court for formal consideration. Chief Justice Warren alerted Frankfurter to the submission, and they both agreed that it should not be made an official part of the record or circulated to all nine chambers. But Frankfurter read both Upson’s affidavit and Fitzgerald’s 1940 declaration that “any person” who violated the 1879 statute “must expect to be prosecuted and punished in accordance with the literal provisions of the law,” and contemplated what if anything he should do about the apparent contradiction between this evidence of prosecutorial intent and the Court’s forthcoming decision that Poe should be dismissed because of the absence of any credible evidence that the patients or Dr. Buxton faced any tangible threat that the old law would be enforced against them. Even Frankfurter’s most supportive clerks realized that their justice was “such a rash character” that at times his actions could surprise anyone, but when Bill Fitzgerald picked up the phone and an unfamiliar voice introduced himself as Felix Frankfurter, the state’s attorney for a moment wondered if someone was pulling his leg. But Frankfurter was Frankfurter, and as a “quite stunned” Fitzgerald subsequently related to his family, the justice wanted to talk about State v. Nelson. Precisely what was said in the “pretty extraordinary” conversation was not recorded by either party, but whatever transpired did not alter Felix Frankfurter’s conviction that the legacy of State v. Nelson represented no barrier to the U.S. Supreme Court dismissing Poe v. Ullman on the grounds that no immediate threat of prosecution faced the Poe plaintiffs.78

Fortunately or unfortunately, however, neither Felix Frankfurter nor Fowler Harper kept up with the Wallingford Post or ever happened to hear of Thomas Coccomo. Forty years old and a resident of Deep River, Connecticut, Mr. Coccomo’s 1961 endeavors included a modest, wholesale effort to furnish contraceptive articles—condoms—to gas station operators interested in offering such items to retail customers. On March 3, 1961—the very same day that the nine justices of the U.S. Supreme Court were privately voting to dismiss Poe v. Ullman on the grounds that there was no evidence that the 1879 Connecticut anticontraception was ever enforced against anyone—Mr. Coccomo’s vocation took him to several service stations in North Haven, Connecticut. Someone apparently complained about his toils, for at one station his sales pitch was interrupted by Lieutenant Walter Berniere and Sergeant Thomas Nerreau of the North Haven police. They ascertained that Mr. Coccomo had approximately a hundred dollars’ worth of contraceptive articles in his car, and they promptly seized his merchandise and arrested him for violating the aiding and abetting portion of the 1879 statute.

Mr. Coccomo retained legal counsel, and four weeks after his arrest appeared in Wallingford Circuit Court before Judge John Daly. The prosecutor indicated that an agreement had been reached: Mr. Coccomo would plead guilty, and only a modest fine would be recommended as punishment in light of the fact that the constitutionality of the statute was under review by the U.S. Supreme Court. Coccomo’s attorney stated that he believed the maximum possible fine was fifty dollars, but Judge Daly disregarded his comment and imposed a penalty of seventy-five dollars. The North Haven Police Department would be instructed to burn all of the seized condoms. For better or for worse, Mr. Coccomo’s criminal conviction—and the Wallingford Post’s front-page coverage of it—never entered into the Supreme Court’s consideration of whether Poe v. Ullman was anything more than an academic challenge to an unenforced statute.⁷⁹

While Felix Frankfurter’s clerks set to work on a majority opinion for Poe v. Ullman, Fowler Harper and PPLC waited patiently for a decision that they expected would be announced sometime in late May or early to mid-June. Harper submitted a jurisdictional statement for Trubek v. Ullman to the high court that largely copied his earlier arguments in Poe, and PPLC made modest preparations for an April 12 legislative hearing on its 1961 repeal bill. Joseph Cooney chose to submit simply a written statement of opposition on behalf of the Connecticut Catholic hierarchy, and in the absence of any actual opponents, the 1961 hearing was a relatively brief and low-key affair. The principal affirmative witness, David Leventhal of the CCLU, devoted most of his remarks to emphasizing that the right to privacy was “perhaps the primary right guaranteed to the people of this state under the Constitution,” but committee chairman William F. Hickey told the hearing that his panel would “hold off action as long as possible” on the bill in anticipation that the U.S. Supreme Court might very well resolve the problem once and for all. Two weeks later the Public Health and Safety Committee approved the repeal bill, but proponents, knowing that the measure had no chance of passage in the state senate, simply left it on the calendar for the remainder of the legislative session rather than bring it up for a floor vote even in the house.80

Estelle Griswold, like Fowler Harper, was not at all sure what the Supreme Court’s decision would be, but by mid-May she was certain of something else: that if the Court were to rule against PPLC and dismiss Poe v. Ullman, the Connecticut League would move as quickly as possible to ignore and defy the old statute by openly offering some form of birth control services. PPLC had some sixty thousand dollars on hand to finance the opening of a clinic, especially should the law indeed be struck down, and Estelle discussed the possibilities with both outgoing president Bea Hessel and her incoming successor, Lucia Parks of Southport, whose PPLC involvement went back to the Hepburn era when she had worked as a volunteer at the Bridgeport clinic in 1938. At PPLC’s annual meeting on May 24, with everyone crossing their fingers in anticipation of a Supreme Court ruling that might well come any day, Fowler Harper spoke optimistically about their prospects and read from a hilarious forthcoming student essay that parodied the Connecticut law by analyzing how pet owners might be arrested if they utilized a new oral contraceptive that recently had been developed for animals. More seriously, Harper told the PPLCers that if the Supreme Court did rule against them, their principal challenge might then become finding a way to get Estelle Griswold jailed.⁸¹

It was not until June 3, three full months after the conference discussion that had decided Poe v. Ullman, that Felix Frankfurter finally circulated to his colleagues a printed draft of an opinion for the Court. Both Dan Mayers and Tony Amsterdam had each prepared several successive drafts of a modest-sized opinion, and in the end Frankfurter chose to work from Amsterdam’s version, revising and modifying Amsterdam’s draft to a significant but not overwhelming extent. As soon as the Frankfurter opinion was distributed, John Harlan immediately sent a note to all his fellow justices notifying them that he would circulate a dissenting opinion “very shortly.” Harlan had been away from the Court for several weeks since the conference discussion of Poe, undergoing surgery for a stomach ulcer, and he had turned over responsibility for preparing the opinion to one of his two clerks, Charles Fried. Harlan had orally instructed Fried to draft a dissent that stated that Poe was indeed justiciable, and while he said relatively little to his clerk about how, or at what length, to address the constitutional merits, both Fried and his coclerk, Philip Heymann, had heard the justice voice his outrage at the invasion of marital privacy that the Connecticut statute represented, and Fried knew full well that Harlan more than agreed with the enthusiastic advocacy of constitutional protection for marital privacy in the home that Fried had offered two months earlier in his initial memo on Poe. Hence in Harlan’s absence Fried prepared a sixty-page typescript draft of an opinion that spoke both to the appeal’s justiciability and, at some length, to the plaintiffs’ constitutionally protected marital privacy. When Harlan returned from his hospitalization Fried waited curiously to see whether the justice would feel that he had gone too far. Little was said about it—“we didn’t have a lot of discussion,” Fried remembered thirty years later—but Harlan clearly liked the draft, and gave it only a modest pencil editing before sending it to the Court’s print shop and then, on June 14, to all of his eight colleagues.82

Fried’s fellow clerks in other chambers were in many cases both impressed and more than a little amazed by the dissent that Justice Harlan circulated. Generally not privy, except in some chambers at second hand, to the comments that justices uttered in the court’s private conferences, Fried’s colleagues had heard neither Harlan’s passionate conference comments on Poe nor the similarly vociferous remarks that the justice had made to his own clerks. Some of them hence viewed Harlan’s strong denunciation of the Connecticut law as a constitutionally offensive violation of marital privacy and liberty as distinctly out of character for such a conservative and solemn justice. A few, such as Brennan clerk Richard Arnold, who would often give Fried a ride to work in the mornings, already knew secondhand how strongly Harlan felt, but for many others the tone and content of the Harlan dissent came as quite a surprise. Virtually all of the clerks ate lunch together almost every day, and after ten months of close companionship the group had reached a clear consensus as to who were the undeniable intellectual stars—Amsterdam, Arnold, and Fried—and also knew their friends’ predilections and styles. Hence when the Harlan dissent was circulated and read, “Everyone knew it was Charles,” one colleague explained years later.83

The same day that Harlan’s dissent circulated, a similar but considerably shorter one by William O. Douglas was also distributed to all chambers. Douglas usually prepared his dissents very soon after the initial conference, and this one had been ready for internal dissemination since late March. Douglas was also well-known for being extremely eager that the Court adjourn as early in May or June as was possible so that he could leave Washington, D.C., for his summer home in rural Washington state. On two recent mornings in succession the usually standoffish Douglas had sat down in the Court cafeteria beside a clerk from another chambers to whom he had never before spoken and asked the slightly startled young man, “When do you think we’ll get out of here?” The clerk had twice mumbled noncommittal responses, wondering the second day whether Douglas even realized he was reenacting the previous morning’s conversation. Then Douglas each time had launched into a soliloquy on how splendid the schedule had been in the late 1930s, when Douglas first came on the Court, and Charles Evans Hughes saw to it that they were done by Memorial Day. “Now there was a Chief Justice!”

Douglas’s dissent in Poe was more thorough and carefully crafted than many Douglas opinions, and on the evening of June 13 Douglas had told fellow justice William J. Brennan that he would circulate it the following day. Two months earlier Brennan had sounded like a firm member of what appeared to be a five-vote Frankfurter majority, but now he was uncertain, and on the thirteenth and fourteenth he made that clear both to Douglas and to his own clerks. He indicated to Douglas that he might well choose to join Douglas’s own dissent, but Douglas, rather than welcoming and encouraging Brennan’s new inclination, instead warned him that such a shift would cause a serious problem: so far only two members of Frankfurter’s ostensible majority, Clark and Whittaker, had formally joined the opinion, and if either Brennan and/or Chief Justice Warren failed to go with Frankfurter, the absence of a fifth vote—in the context of Justice Black’s unique stance—would leave the Court without any clear majority for deciding Poe. Most importantly, Douglas noted, if they got tied up in any extensive reconsideration of Poe, the hope of concluding the term next Monday, June 19, could very well be endangered. Hence it would be better, Douglas told Brennan, for him to ‘stick with Felix so we can get this case decided and get out of here.’84

Other cases too—particularly a 5 to 4 Fourth Amendment search and seizure decision that was being written by Justice Clark, Mapp v. Ohio, were also scheduled for final ratification at a Friday conference and announcement on Monday the 19th, but throughout Wednesday the 14th and Thursday the 15th, Brennan remained undecided about Poe, pondering whether he might prepare a small separate concurrence of his own rather than join either Frankfurter or Douglas. Hence the question of whether there would be a majority disposition of Poe remained highly uncertain, and on Thursday Frankfurter circulated a very slightly revised version of his previous draft. He pointed out to his colleagues in a cover letter that at two places in the opinion he had added sentences strengthening the decision’s reliance on the fact that no prosecutions under the statute had ever been pursued and that there were no indications that the law presently was being enforced against anyone.

The other uncertain member of the tentative Frankfurter majority was Earl Warren. The Chief Justice had not been fully persuaded by the initial version of Frankfurter’s opinion, and even the Thursday emendations had not completely eliminated his discomfort. He told his clerks that “I just hate to strike down any law that’s passed in the name of the public interest,” and while it seemed unlikely that he could imaginably join either Harlan or Douglas, heading into the Court’s final conference of the term neither Earl Warren nor Bill Brennan had firmly decided what they would do with Poe v. Ullman.

Friday morning in advance of that final conference Brennan instructed his clerk Richard Arnold to draft a brief separate concurrence, endorsing the dismissal of Poe on the grounds that the real Connecticut dispute concerned clinics, for Brennan to review right after the meeting. Then, once the conference was underway, Brennan just before eleven thirty a.m. sent out a note informing Arnold that the term was indeed going to conclude on Monday, that he was going to join in the dismissal of Poe by means of a separate concurrence, which he had promised his colleagues would be circulated before the end of the day, and that Arnold immediately should prepare a draft. Arnold sat down and did just that, and within a half hour sent in to Brennan for his approval a five-sentence statement of Brennan’s views. Five minutes later Brennan sent out another note informing Arnold that his draft was fine and that it should be typed up and then distributed to all chambers.

After the conference concluded, Arnold and other clerks learned the final score: the Chief Justice by the end of the day would join either the Frankfurter opinion or the Brennan concurrence, thus guaranteeing five clear votes for a dismissal of Poe. Justice Black would be recorded as dissenting without opinion. By the end of the afternoon Justice Stewart, the other dissenter, circulated a three-sentence statement that hinted, but did not expressly state, that he shared the views of both Harlan and Douglas. Also late in the afternoon Earl Warren, at the urging of at least one of his clerks, sent Felix Frankfurter a two-word note—“I agree”—indicating that he would join Frankfurter rather than Brennan. The conference had similarly decided that the appeal in Trubek v. Ullman would also be dismissed, with Justices Douglas, Harlan, and Stewart in disagreement. Privately but perhaps most notably of all, Justice Brennan in recounting the conference to his clerks firmly revealed that were he actually to reach the merits in Poe, he definitely could not vote to affirm the decision below and would instead vote to void the statute as applied. Thus by only the tiniest of margins had Poe v. Ullman—and PPLC—come up one vote shy of convincing the United States Supreme Court that P. T. Barnum’s long-lived 1879 criminalization of birth control should finally be held constitutionally void.85

On Monday morning, June 19, the Supreme Court formally handed down its 5 to 4 dismissal of Poe v. Ullman. The final version of the Frankfurter opinion that commanded only four votes came to just eleven small pages in print. It emphasized the “lack of immediacy” of any threat of prosecution, called the Poe challenge “abstract,” and brushed aside Nelson as a “test case.” “Neither counsel nor our own researches have discovered any other attempt to enforce” the 1879 law, and this “undeviating policy of nullification” of the old statute highlighted the “unreality” of the Poe, Doe, and Buxton lawsuits. “Federal judicial power,” Frankfurter emphasized, “is to be exercised to strike down legislation … only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged” law. Where there was no “realistic fear of prosecution,” Frankfurter concluded, “[t]his Court cannot be umpire to debates concerning harmless, empty shadows.”⁸⁶

William Brennan’s brief concurrence was simple and straightforward. The Poe appeal, he said, failed to present “a real and substantial controversy” and was based upon a “skimpy record.” He was unconvinced that the individual plaintiffs actually faced any real dilemma; the “true controversy” in Connecticut was instead “over the opening of birth-control clinics on a large scale.” Unless by some chance the state of Connecticut actually did make “a definite and concrete threat to enforce these laws against individual married couples,” the Court could “decide the constitutional questions urged upon us when, if ever, that real controversy” over the opening of clinics “flares up again.”87

Beyond the very brief indications of dissent filed by Justices Black and Stewart,⁸⁸ both William O. Douglas and John M. Harlan filed significant dissenting opinions. Douglas rebutted Frankfurter’s characterization of Nelson as simply a “test case,” invoked the First Amendment on behalf of Buxton, and concluded that the Fourteenth Amendment liberty rights of the “Poes” were undeniably violated by the 1879 statute. Privacy was among the components of liberty, and “‘Liberty’ is a conception that sometimes gains content from the emanations of other specific guarantees” in the Constitution “or from experience with the requirements of a free society.” Douglas noted how the Connecticut law “reaches into the intimacies of the marriage relationship,” and how, if enforced, it could “reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.” Any possible enforcement against married couples, Douglas declared, would be “an invasion of the privacy that is implicit in a free society,” a privacy that “emanates from the totality of the constitutional scheme under which we live.”⁸⁹

John Marshall Harlan’s dissent was more than twice the length of Douglas’s and three times the size of the Frankfurter opinion. He explained at some length why Poe was indeed justiciable and gave a detailed critique of Frankfurter’s characterization of Nelson. Harlan quoted from both the April 1940 Fitzgerald statement and from Warren Upson’s affidavit that Harper had submitted, and also included a long footnote taking issue with the comments that Brennan had offered in his brief concurrence. On the constitutional issues, Harlan minced few words: “a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s private life” and hence violated the due process clause of the Fourteenth Amendment. The Constitution’s language clearly indicated that the clause’s protection of “liberty” could not be reduced to any simple definition or formula, Harlan emphasized, but what it shielded was “a freedom from all substantial arbitrary impositions and purposeless restraints.” The Connecticut law intruded upon “the most intimate details of the marital relation” and “allows the State to enquire into, prove and punish married people for the private use of their marital intimacy.” The “privacy of the home in its most basic sense” must be “a most fundamental aspect of ‘liberty,’” and not only within the contours of the Fourth Amendment’s protection against unreasonable searches and seizures. Harlan quoted a long segment from Justice Brandeis’s well-known 1928 espousal of “the right to be let alone,” and asserted that “the Constitution protects the privacy of the home against all unreasonable intrusion of whatever character.” Fourteenth Amendment liberty protected that privacy of the home not as a matter of property rights, but because it was the locus of what a prior decision had once termed “the private realm of family life which the state cannot enter.” “[I]t is difficult to imagine,” Harlan observed, “what is more private or more intimate than a husband and wife’s marital relations.”

The right of privacy, Harlan acknowledged, “is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced.” But “the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extramarital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”

All in all, Harlan concluded, “the appellants have presented a very pressing claim for constitutional protection” against the “utter novelty” of Connecticut’s “obnoxiously intrusive” statute. And although Lee Buxton, Estelle Griswold, and Fowler Harper had come up one vote shy in Poe v. Ullman, what John Harlan had said in dissent would prepare the way not only for their eventual victory four years later over the legacy of P. T. Barnum, but would open the door as well for a further expansion of the struggle that neither Harlan nor Harper nor even Estelle Griswold had yet envisioned.90