CHAPTER FOUR

Creating the Right to Privacy: Estelle Griswold and the U.S. Supreme Court, 1961–1965

Neither Lee Buxton nor Estelle Griswold was terribly surprised when news of the Supreme Court’s 5 to 4 dismissal of Poe v. Ullman reached them that Monday, June 19. Estelle had known for some weeks what course of action she would push for should Poe be turned aside, and early Tuesday morning June 20, she, Fowler Harper, and PPLC president Lucia Parks headed to New York to talk with PPFA officials before PPLC made any public announcement of its resolve to now go ahead and open at least one birth control clinic in the state as soon as it could.

After conferring with PPFA public relations director Fred Jaffe and others, a joint press release immediately was issued in the names of Lucia Parks and PPFA president Cass Canfield. Rather than deplore the Supreme Court’s action, the statement declared that “we welcome the recognition by the Court that the law has in fact become a nullity” and promised that PPLC would move “as rapidly as possible” to publicly offer contraceptive services. Estelle told reporters that September would be PPLC’s target date for opening an initial clinic in New Haven, and stated that since the Supreme Court had declared the law to be “a dead duck,” PPLC had “an open road” for eventually opening multiple clinics. “We merely desire freedom in this most intimate of all our practices,” Estelle emphasized. “We don’t wish to impose birth control on anyone.” She added, however, that if authorities did choose to move against the first clinic that “We would of course welcome prosecution by the state” so that the “absurd and antiquated” 1879 law could be removed from the books.1

Editorial responses to the “puzzling” and “regrettable” decision in Poe generally praised Harlan’s “powerful and persuasive” dissent while decrying the Court’s failure to void Connecticut’s “extreme and repressive” statute. An exasperated Lee Buxton told one reporter that “It all adds up to the rich getting contraceptives and the poor getting children,” and in some interviews Estelle emphasized a similar theme, explaining that “It is the woman of the lower socio-economic group who does not know she can space her children, who cannot afford to go to a private doctor, who is being discriminated against by the Connecticut law.”

Fowler Harper, with particular encouragement from Harriet Pilpel, quickly set to work preparing a petition for rehearing to the Supreme Court. Normally an almost certain waste of time, such petitions were granted only in the rarest of circumstances, but the Clerk’s Office of the Court on Tuesday the 20th had indicated to Pilpel that in Poe such an effort might not be wholly futile. More realistically, Harper also immediately began researching the potential legal vulnerabilities that might be faced by clinic personnel. Estelle herself was already scouting the surrounding neighborhood for an available building that could offer sufficient space for both clinic facilities and PPLC’s offices, and on June 22, with Buxton’s approval, she and Lucia Parks sent a letter to several dozen New Haven–area physicians inviting them to a June 28 luncheon meeting to form a medical advisory committee that would advise and oversee the opening a New Haven clinic.2

Lee Buxton prepared carefully for the June 28 meeting. He had already sent memos to both the dean of Yale’s Medical School and to the administrator of Grace-New Haven Hospital privately notifying them that as of July 1 the ob/gyn staff would begin giving birth control advice unless they forbid it, and when he phoned the hospital administrator on the morning of the 28th to inquire as to whether there would be any written acknowledgment, Buxton was told not to expect a reply. Both PPFA medical director Mary Calderone and new PPFA national director Alan F. Guttmacher, an exceptionally prominent physician who had long been an outspoken liberal on reproductive issues, came up to New Haven for the June 28 session, and heartily endorsed Buxton and Griswold’s resolve to move ahead posthaste with a clinic. Later that day PPLC announced the formation of the medical advisory board to the New Haven papers and declared its hope of opening a clinic on or about September 1.³

Some observers thought Buxton was being truly courageous to lead the charge toward open defiance of the old statute, but when the ageing Morris Ernst sent him a midsummer fan letter, Buxton responded with self-effacing humility. “Quite frankly I do not feel particularly heroic about this effort … It seemed a necessary thing for a person in my position to do—being Chairman of the Department of Obstetrics and Gynecology in the only medical school in Connecticut. Possibly the economic security of a full-time position in a medical school made it possible for me to take this stand without fear of financial damage, although I think that the attitude of most of the professional people in Connecticut, even Catholics, is overwhelming in favor of nullification or repeal of these laws.” Perhaps surprisingly, the weekly Catholic Transcript had offered no comment whatsoever in the wake of the Poe decision, and extensive attention had been drawn to a well-publicized article by Catholic physician John Rock in a popular national magazine recommending that “All restrictions, written or unwritten, should be lifted” from the public provision of birth control. Perhaps it was possible that PPLC’s long-standing opponents, just as they had at the 1961 legislative hearing, might be deciding to withdraw from any further active battle rather than continue to fight.4

On July 7 Fowler Harper formally filed his petition for a rehearing of Poe with the U.S. Supreme Court. He contended that Nelson represented “a definite policy of enforcement” on the part of the state and expressly challenged Justice Brennan’s attempted distinction between the practices of private M.D.s and the opening of clinics by pointing out that “If a clinic is opened in Connecticut, this Court will not have the ‘clinic’ before it, praying for a decision, but Dr. Buxton.” Harper asserted that the June decision should be reconsidered because it “encourages violation of the law and dignifies the doctrine of nullification as a policy of government” and also because it represented nothing more than “an open invitation to appellants to violate the criminal law of the state because it is unlikely that they will be caught.” He emphasized that Dr. Buxton “has not given contraceptive advice to appellants Poe and Doe in the hospital or any place else,” and concluded that the June decision “appears to tell these appellants that they must be arrested and prosecuted before they can have their constitutional rights adjudicated.” Harper had his colleague Tom Emerson carefully review the petition before it was filed, and he told his Washington friend Gene Gressman that although the odds against any such petition were indeed very high, he nonetheless had some hope of persuading either the Chief Justice or Justice Brennan.⁵

Unbeknownst to Harper, Poe indeed was very much on the mind of William J. Brennan. In a July 10 talk to a group of English barristers in London, Brennan brought up Poe almost immediately. “We must indeed find difficulty in imagining a more indefensible invasion of privacy than an invasion of the marriage chamber by government,” he told his audience, but the Court, he explained, had not addressed the constitutional issue “since apparently the plaintiffs were not truly caught in an inescapable dilemma and actually were seeking invalidation of the Connecticut statute in the interest of the opening of birth control clinics.” Brennan told the Londoners, just as he had said in his Poe concurrence, that the Court could decide the constitutional question “when and if the Connecticut statute is applied to a birth control clinic.”

A week and a half later Harper received an unusual letter forwarded to him by PPFA president Cass Canfield. A well-known ethicist, Joseph Fletcher, who had several acquaintances at PPFA, had written Canfield to ask whether “you and/or Fowler Harper” could “give me any idea of some other constitutional ground upon which” Poe “might have been argued” before the Supreme Court. Fletcher offered a circumlocutious but clear enough explanation for his inquiry:

Discretion forbids me to say more than that I had dinner the other evening with one of those who decided the fate of the case—one of the brothers Above, as they say—and he is very troubled about the whole thing.

The point is: if I got from you any sort of helpful lead I would be glad to pass it on to him. Any more attempts will have to lie before him.

It was an amazingly audacious notion, particularly from an ethics specialist no less, and Harper politely but coolly told Fletcher no thank you: “I do not believe that there are any substantial constitutional arguments that could have been used … other than those which were actually used, or with which the Justices were already familiar. In any event, I should not think it proper for me to suggest anything further, with a view to your passing it on to one of the Justices.” A partially chastened Professor Fletcher thanked Fred Jaffe at PPFA for a copy of Harper’s petition for rehearing and other materials, volunteering that “Some of it I may pass on to my unnamed justice. But I gather that Fowler Harper is afraid, properly, to do or say anything sub judice or what ever it’s called.”6

In a distinctly different realm, and fully on the up-and-up, in late July Estelle signed a lease for nine rooms in a building just one block up Trumbull Street from PPLC’s existing office. Although she did not know it, her selection of space on the second floor at 79 Trumbull—a striking nineteenth-century home that once might have deserved the word “mansion”—represented an ironic return home for PPLC, for it was in that same building that Nowell Creadick had housed the Connecticut League’s offices back in the mid-1930s. On July 31 PPLC shifted its offices up the street to the new rooms, and Estelle told the New Haven newspapers that she now hoped to open a clinic by approximately October 1. Lee Buxton was working to obtain a quiet donation of surplus examining-room equipment from Grace-New Haven Hospital, and inquiring reporters, reacting to Estelle’s announcement, were unable to evoke any evidence of interest from legal authorities. The state attorney general’s office commented that the subject was “entirely within the discretion of the local prosecuting attorneys,” and the New Haven state’s attorney’s office said that it had received no complaints. Estelle told one friend that “if we are not closed up in New Haven,” additional clinics would be opened in Hartford and then Norwalk as soon as funds were available, and in early September she told a New York reporter that even in advance of opening “We have been getting about ten to fifteen calls a week” from women seeking appointments.7

By mid-September PPLC had pushed its projected opening date back to November 1. Refurbishing the clinic rooms at 79 Trumbull was taking more time than had been anticipated, and Fowler Harper was privately recommending that they wait until the Supreme Court ruled on the rehearing petition. Birth control nonetheless remained in the news in virtually every Connecticut paper when the Associated Press reported that both Middlesex County State’s Attorney Thomas W. Flood and Hartford County State’s Attorney John D. LaBelle were investigating complaints that a paperback book, The Complete Book of Birth Control, by PPFA’s Dr. Alan Guttmacher, was widely available for purchase. A Durham bookstore owner and retired journalist who was a member of both PPLC and the ACLU immediately issued a public invitation to Mr. Flood to drop by and pick up a copy, and Flood’s admission that the book was not actionable under the 1879 statute was almost lost in a slew of humorous but nonetheless pointed press coverage. “If the state permits its sale,” bookstore owner Keith Henderson rhetorically asked, “how can it logically move to close up a birth control clinic?”⁸

On Monday, October 9, the Supreme Court without comment routinely denied Harper’s petition that it reconsider Poe. Three days later Estelle told Fowler that she hoped to announce an opening date within ten days or so, with three two-hour clinic sessions to be offered each week. New Haven PPLC members would supply much of the staffing, and Lee Buxton had recruited four additional doctors who would each volunteer several hours of their time. In line with national PPFA practice, “No unmarried woman will knowingly be accepted as a patient,” except for premarital fittings where the woman was referred by a member of the clergy. “It is our hope,” Estelle told one acquaintance, “that someone will complain and that the State Attorney in New Haven will act to close the center. We shall then carry our case to the U.S. Supreme Court and this time we feel they shall have to make a decision.” Finally, on the evening of October 26, PPLC notified the press that a news conference would be held at 79 Trumbull on Thursday, November 2.9

Estelle, Lee, and Fowler planned their opening event carefully, and with dozens of eager potential patients calling the office, Estelle set the first ten appointments for Wednesday evening November 1—the night before the news conference. Those examinations and consultations went without incident, and on Thursday morning Estelle and Fowler faced only one problem—the reluctance of the self-effacing Lee Buxton to show up at the press session. Fowler successfully badgered him by warning that “You won’t be able to stop them from taking your picture when you get taken into court,” and a hesitant Buxton joined Harper and Griswold in meeting the more than forty media representatives who showed up at 79 Trumbull. Estelle and Lucia Parks announced the Wednesday evening kickoff and described how many inquiries and supportive calls PPLC had been receiving. Clinic sessions would be held each Wednesday evening, Friday afternoon, and Tuesday morning, Estelle explained. Lee Buxton spoke briefly about the two 1957 patients, “Irene W.,” who had died, and Ruth “Oldendorf,” or “Jane Doe,” whose cases had had such a deep personal impact upon him, and then Fowler bluntly blurted out their most pressing hope: “I think it would be a state and community service if a criminal action were brought. I think citizens and doctors alike are entitled to know if they are violating the law.”

Reporters seeking to find out whether Harper’s wish would indeed come true received mixed signals. Under a recent reorganization of Connecticut’s local court structure, a violation of the birth control statute, since it was a misdemeanor, not a felony, presumptively would fall within the jurisdiction of circuit court prosecutor Julius Maretz, who declined comment. New State’s Attorney Arthur T. Gorman, who had succeeded his longtime boss Ab Ullman only five months earlier, was slightly more forthcoming: “If other people don’t enforce the law, I will have to take some steps. But it is up to the police and Circuit Court at this stage.”¹⁰

Although Fowler Harper would not know about it until the following afternoon, by early Thursday night his hope was indeed well on its way to fruition. One local reader of the evening newspaper was deeply outraged at the news of the clinic’s opening and the noncommittal remarks of the prosecutors, and resolved that if they were not pursuing such a scandalous violation of the law, he certainly would. James G. Morris, a forty-two-year-old West Haven Roman Catholic father of five, was the night manager of Avis Rent-a-Car’s Downtown Garage at 280 Crown Street, and his first reaction was to call the Connecticut State Police. They told him it was a matter for the New Haven Police Department, and sometime Thursday evening Morris called there, only to be told that his complaint could not be accepted and that he would have to talk to the chief. Friday morning Morris resumed his crusade and, taking that suggestion one step further, instead called the office of New Haven Mayor Richard Lee. There too he was told he was in the wrong place, and that he should phone the assistant chief of police. Finally Morris did succeed in reaching Assistant Chief Simon P. Reising, who said he would discuss the matter with circuit court prosecutor Maretz. Morris paused for perhaps an hour, griping to reporters that “the clinic is being given special privileges by the New Haven Police Department.” Then Morris himself called Maretz, who told him he had received no complaint by way of Reising and was not aware that any law was being broken. Morris bluntly told him he did not agree, and within the half hour showed up at Maretz’s office in person. Yielding reluctantly, the circuit prosecutor brushed aside Morris’s request that he accept a written complaint but acquiesced and said that he would request a police investigation.11

Julius Maretz knew almost everyone in New Haven law enforcement. Born in Russia sixty-nine years earlier, he had come to New Haven as a child, graduated from Yale Law School in 1912, and served as part-time prosecutor in the city police court since 1945. Jewish and a registered Republican, he had been named chief prosecutor in the new circuit court when Connecticut’s judicial system had been restructured a year earlier. At about one p.m. on Friday, just moments after he had shooed Mr. Morris from his office, Maretz walked over to the detective division of the city police department. He told Captain William Holohan that he had received a complaint about the birth control clinic and was thus requesting an investigation. A few minutes later Holohan called in Detectives John A. Blazi and Harold Berg, and at about two ten p.m. the two officers arrived at 79 Trumbull Street and climbed the stairs to PPLC’s second floor reception room.

Blazi and Berg’s arrival happened to coincide with PPLC’s second clinic session. Some half-dozen women were in an adjacent waiting room, and in another room Dr. Virginia Stuermer was speaking with several other patients. Several of the women, realizing who the visitors were, worried that perhaps their appointments would now be canceled, but Stuermer went right ahead with her counseling and fittings. A volunteer at the front desk quickly summoned Estelle, who was ecstatic at the news of the officers’ arrival. She went out, introduced herself, and enthusiastically invited the two detectives into her private office, saying she would be more than happy to give them whatever information they might want about the clinic. Berg, a ten-year veteran of the New Haven department, had not previously met Griswold, but John Blazi, also a department veteran, had had in earlier years a good deal of contact with the Human Relations Council. Well-known in New Haven for his “keen and innate sense of humor” and for emceeing various functions, Blazi had taken Spanish classes at Yale and had become a fluent speaker of the language. He handled most of the department’s cases involving Puerto Rican citizens, and in 1958 the council had presented him with an award.

Blazi and Berg quickly realized that Estelle Griswold was quite overjoyed to see them. Once in her office, she offered them multiple copies of all the clinic’s literature and pamphlets, and waited hardly a moment before telling them that she very much hoped that the anticontraception law would indeed be enforced against her and the clinic so that the statute’s constitutionality could again be challenged before the U.S. Supreme Court. Then, as Blazi struggled to take notes, Estelle Griswold launched into what was clearly the speech of her life, a speech for which she had been preparing for almost eight years. She told the two detectives far more than they needed or wanted to know about the procedures the clinic used in determining fees (a maximum of fifteen dollars), taking patients’ histories, and in fitting and instructing women in the use of a diaphragm and contraceptive jelly. “Upon giving us this step of the procedure,” Blazi wrote in his formal report on the investigation, “Mrs. Griswold informed us that she realized that this particular step was a violation of the law.” Estelle herself later boasted that she had tried to use “all the medical terminology that I knew” in delivering her extensive rendition, and the interview went on for more than ninety minutes. Shortly after four p.m., with Dr. Stuermer having been called away in order to deliver a baby, Lee Buxton arrived and immediately stuck his head into Estelle’s office. Blazi summarized for Buxton the notes he had taken on Estelle’s descriptive comments, and Buxton willingly volunteered that they were all accurate. Buxton also took the opportunity to emphasize that while there were other doctors, nurses, and social workers volunteering their time at the clinic, that “actually only Mrs. Estelle T. Griswold and himself were directly responsible as directors for the operation of the Center.” Then, just as Blazi and Berg were preparing to leave, Estelle delivered the final portion of her soliloquy: “Mrs. Griswold stated,” as Blazi recorded it, “that although she welcomed arrest and a chance to settle the question of the Connecticut State Statute’s legality, she would refuse to be pictured and finger-printed, feeling that she had not committed any crime, would not accept bail, and would physically resist and repel any effort on the part of the police to seize as evidence the personal clientele files of the Center, as she felt that, as doctor’s medical records, the information contained therein should be kept confidential.” With that Berg and Blazi each shook hands with both Estelle and Buxton and departed.12

Curious reporters mused that both Griswold and Buxton would soon face charges, but Estelle simply said “We don’t know what the next step will be” and Maretz declined comment other than to confirm that the detectives had indeed visited the clinic at his direction. Mr. Morris continued to sound off, telling the media that “every moment the clinic stays open another child is not born,” but both the third clinic session, on Tuesday morning, November 7, and the fourth, on Wednesday evening the eighth, took place without event or interruption.

Early Thursday morning November 9, Julius Maretz, having reviewed Blazi’s report on the interview with Griswold and Buxton, instructed the two detectives to go, back to the clinic and ask Griswold for the names of at least two women who had received birth control instructions and supplies there. If such voluntary witnesses could be found, it would obviate any struggle or dispute over patient records. Blazi and Berg immediately returned to 79 Trumbull and put the prosecutor’s request to Griswold. Estelle said she was sure she could arrange for two such patients to provide statements to the officers, and that she would try to have them call at the detective division before the end of the day. Not wanting to miss a further educational opportunity, Estelle also insisted that both detectives dip their fingers into some of Joseph Sunnen’s Emko Vaginal Foam before they went on their way.

Estelle’s first thought with regard to the detectives’ request concerned a woman she had spoken with just the previous evening as the Wednesday night clinic session was concluding. Joan Bates Forsberg, a thirty-three-year-old Yale Divinity School graduate and mother of three, previously had been making the same trek to the Planned Parenthood clinic in Port Chester, New York, that had so infuriated Jean and Marvin Durning four years earlier. With her husband pastoring the Inner City Parish in a poor area of New Haven, Forsberg had never wanted to spend money on a private physician, and when she read about the new PPLC clinic in a local newspaper, she quickly called for an appointment. Forsberg and several other women first listened as Estelle described the different methods of birth control that were available, and each made a choice before having an individual examination with a doctor and a nurse. Forsberg chose the new oral contraceptive pill, of which the doctor gave her a supply, but just as she paid her two-dollar fee and turned to leave, Griswold reappeared and Forsberg paused to thank her for what she and PPLC were doing. “I know you’re running a risk, and if there’s anything I can do to help, let me know.”

And so that very next morning, once the detectives had gone, Estelle called Joan Forsberg to take her up on her offer. “You said you would be glad to do anything you could to help,” Griswold began. “Yes,” Forsberg said. “We’d like you to make a statement to the police that in fact you went to the clinic, to turn state’s evidence so we can get this into court.” Forsberg was at first unsure exactly what Griswold meant, and Estelle slowed down and described the situation in greater detail. Once Forsberg understood it, and once Griswold reassured her that the detectives would not pursue Forsberg herself and that no public testimony was likely to be required, she readily agreed to arrange to go down and give Blazi a statement sometime that afternoon.

Estelle could not immediately think of a second patient whom she might similarly call or impose upon. Perhaps more seriously, Joan Forsberg had been examined not by Lee Buxton but by another doctor, and, with some worry, Estelle phoned Fowler. Always resourceful, Fowler said he would find her another willing patient and solve the problem without delay. One of Harper’s favorite younger colleagues on the law school faculty, Robert Stevens, had been married for less than a year to a young woman who was now a graduate student in Yale’s Public Health School. Both from England, they had impressed Harper at dinner parties as a young couple of sufficient moxie to probably be willing to follow in the footsteps of the Durnings and the Trubeks. Harper went to Robert Stevens’s office and put the question directly: would he and his wife, Rosemary, be willing to enlist in the birth control struggle by arranging an immediate appointment for Rosemary with Lee Buxton, and then furnishing an appropriate statement about it to the New Haven police? Stevens was willing, but with one caveat: both he and Rosemary were English citizens with American “green cards,” and would not want to be deported if they had to testify that they had violated the Connecticut birth control statute. Harper laughingly volunteered that he would happily take that case to the U.S. Supreme Court as well, and then explained that they had to move quickly. Rosemary was located and readily agreed, and it was arranged that she would rendezvous with Buxton at the PPLC office at two thirty that very afternoon. From there she would go directly to the police department.

At two p.m. Joan Forsberg arrived at the detective division and sat down with Blazi, Berg, and Lieutenant Mae Gilhuly. Under friendly interrogation by Blazi, who typed out the questions and answers as they proceeded, Forsberg described how she had come to visit the PPLC clinic and what services and supplies had been provided to her there. She had been furnished a two-month supply of birth control pills, but had not yet had occasion to begin using them. Offered the opportunity by Blazi, Forsberg concluded her statement by observing that “I shall be very happy to see the time when information about birth control is legally made available to all married women in this state.”

At three forty-five, straight from her visit to 79 Trumbull Street, Rosemary Stevens similarly appeared at the detective division and sat down with Blazi, Berg, and Gilhuly. Her answers to Blazi’s questions acknowledged that she had visited the clinic at two thirty that afternoon, in order to be sure that the diaphragm with which she had been fitted in England eleven months earlier was still effective; she said she had learned of the clinic “from friends.” She explained that she had been examined by Dr. Buxton, and that Estelle Griswold had furnished her with a new tube of contraceptive jelly, at a charge of fifteen dollars. Blazi did not inquire as to whether she had yet had occasion to use it, but, as with Forsberg, Blazi concluded by asking Stevens about her interest in the issue. She explained that she wanted to delay any pregnancy until she had completed her graduate education, and added more generally that “This opportunity should be made available to all women in this state.” Blazi interrupted his typing to ask, “Don’t you mean married women, Mrs. Stevens?” With considerable hesitance, and only because Blazi had been so friendly and helpful, Rosemary Stevens reluctantly agreed to Blazi’s adding “married” to her statement before she signed it. “I still feel badly about that,” she explained over thirty years later.13

Friday morning, November 10, Julius Maretz gave Blazi and Berg arrest warrants for Estelle Griswold and Lee Buxton that had been signed by Judge J. Robert Lacey. He then called Katie Roraback, with whom he also had spoken concerning the matter of patient records, to inform her that Griswold and Buxton should surrender at the detective division’s office at three that afternoon. Roraback called both of them, and Fowler instructed Estelle that since they had now reached this stage, clinic services would have to be discontinued.

Right on schedule, Estelle and Lee, accompanied by Roraback and by Estelle’s deputy, Fran McCoy, appeared at police headquarters. Buxton wore a conservative suit and tie; Estelle looked as if she were headed for an Easter Sunday service, not an arrest proceeding. Estelle only half jokingly reprimanded Roraback for having allowed her to miss out on her one chance for a ride in a patrol wagon, but the formal charges in the warrants for both Griswold and Buxton were not intended to be humorous. They alleged that both defendants “did assist, abet, counsel, cause and command certain married women to use a drug, medicinal article and instrument, for the purpose of preventing conception,” and further stated—in line with the companion statute—that the women “did in fact use said drugs, medicinal articles, and instruments for the purpose of preventing conception.” Both Estelle and Lee declined to make any statement to the police, and neither mug shots nor fingerprinting was included in the booking process. Each defendant was released on a hundred-dollar bond, with an initial court appearance set for November 24. Buxton told waiting reporters that he was sorry that clinic services had had to be discontinued, for “It’s very disappointing not to be able to treat patients who need medical advice so badly. It’s like not being able to use penicillin for anyone who needs it.” Estelle told the journalists that scores of upcoming clinic appointments had been canceled, and explained that each woman would receive a letter from PPLC listing seven contraceptive products that were widely available for commercial purchase in Connecticut as well as giving the addresses and phone numbers of the neighboring Planned Parenthood clinics in New York and Rhode Island. Reporters who asked Julius Maretz whether the charges meant that he disagreed with the Supreme Court’s statements in Poe were told only that “There has been a crime committed in my opinion and we issued the warrant on that basis.”14

The week’s developments delighted birth control supporters all across the country. Harriet Pilpel wrote Harper that “I am sure I don’t have to tell you what a magnificent job we feel that all of you in Connecticut are doing. We don’t want to be in the position of back seat drivers,” she asserted, but she hoped Harper and Roraback were aiming on an actual trial rather than proceeding by stipulation. Also, as she and Harper had discussed at a weekend dinner, neither Forsberg nor Stevens had as of Thursday actually used the materials that Griswold and Buxton had been arrested for furnishing them, and that would have to be corrected in order to avoid a fatal procedural problem later on.

Episcopal Bishop James A. Pike, erroneously assuming who had initiated the Connecticut charges, told PPFA’s Cass Canfield that the New Haven prosecution “either represents very fine planning on the part of the Planned Parenthood Federation, or real stupidity on the part of the Roman Catholic Church.” Maverick Catholic physician John Rock wrote to Buxton to say that “I am very grateful to you for doing what I might have considered doing here in Massachusetts if it were not for the religious scandal it would have generated,” and Buxton replied that “unfortunately for my ego,” he did not “feel very much like a martyr.” In an odd coincidence, apparently stimulated by a letter Fowler Harper had signed calling for a change in American policy toward Cuba, rather than by the events with PPLC’s clinic, the New Haven office of the Federal Bureau of Investigation early that same week, in response to a previous prodding from FBI headquarters, also took the notable step of adding the sixty-four-year-old law professor to Section A of the Reserve Index, bureau-speak for one of several secret lists of people who were to be picked up and interned in the event of a national emergency. The New Haven office cited Harper’s ongoing membership in the National Lawyers Guild, his 1946 Indiana ballot petition signature, and his professorship at Yale—“In this position Harper is in a position to influence others against the national interest”—but not his representation of PPLC, as grounds for formally certifying him as a threat to national security.15

On Tuesday, November 14, Julius Maretz sent detective Berg back to PPLC to see whether clinic operations were continuing and to ask Griswold if she could send them an additional willing patient or two. Berg discovered that the only other nonstaffers present were two reporters from Look magazine, and Griswold promised that she would try to send them an additional patient. The following afternoon Marie Wilson Tindall, a thirty-seven-year-old black woman who had visited the clinic on November 7 along with her husband, a New Haven social worker, gave Berg a statement and also handed over to him the diaphragm, contraceptive jelly, and other articles that she had been furnished for seven dollars and fifty cents during her visit to the clinic. The following day Rosemary Stevens again visited the detectives to dictate a brief supplementary statement. She specified that beginning on the evening of November 9, there had now been four occasions on which she had used the contraceptive jelly that Estelle Griswold had furnished her, and Detective Berg took possession of one “partially used tube of vaginal jelly.” The next morning Joan Forsberg also came to headquarters to supply a supplementary statement attesting to the fact that she had now begun using the birth control pills that PPLC had provided. She handed over the remaining pills to the detectives, and then immediately went home and called Griswold to ask for replacements. “I said I really don’t mind going to jail for this cause, but getting pregnant is another story.”16

One interested observer who was not happy with the ongoing developments was the high-strung Mr. James G. Morris. Some might have thought that Morris would be overjoyed at news of the charges against Griswold and Buxton, but instead he was highly dissatisfied that only two defendants had been arrested and that they had then been released on bail rather than incarcerated. Morris told the reporters from Look that initially “I thought somebody else would act, some organization like the Knights of Columbus,” but when they did not, he did. He explained that “I think that a Planned Parenthood Center is like a house of prostitution. It is against the natural law, which says marital relations are for procreation and not entertainment.” Morris was willing to concede that “Birth control is a private thing, and people do have a right to believe in birth control. But the doctors who prescribe contraceptives in Connecticut are breaking the law,” and in Morris’s judgment that 1879 statute “is a good law, and it should be enforced.” Even in the PPLC clinic’s very brief existence, Morris emphasized, it “did an awful lot of damage.”

Morris complained to Maretz about the insufficiently zealous enforcement and demanded an opportunity to file a more inclusive complaint, but the prosecutor told him in no uncertain terms that the only help he wanted was from the police. Morris then refocused his attention on the department’s two top officers, and after securing a meeting with the chief, finally was afforded an opportunity to dictate a written complaint to Detective Berg. What initially had angered him, Morris told Berg, was that PPLC could hand out “what I consider immoral literature to anyone that would walk into their place.” Concerning his own public involvement, Morris explained that

I did this to protect my five children because I did not want any of this to fall into their hands and to stop the bad publicity that was in the papers, that they had to listen to on the television, radio and that they read in newspapers. I also did it because it is against the law to practice birth control and to give any information on it in this state. The same doctor that worked this immoral house also has the right to practice medicine in our hospitals; if he breaks the law this way what guaranty do the hospitals give me that he won’t break these laws of impurity where I must send my children. If this woman who claims to be the head of this so-called clinic breaks this law th[en] she would not break the law by running a house of prostitution.

Morris added that “I also do not understand why they are a nonprofit organization when they are breaking the law. I filed this complaint to protect my children and all children and people against juvenile and adult delinquency.” He said that registered letters he had sent to the governor and other elected officials protesting PPLC’s activities had not been answered; PPLC’s efforts, he explained, “cause many innocent people to break the law of this state.” Before finally getting rid of Morris, Berg asked him what he would think if the 1879 statute no longer existed. Morris replied, “I would say that they had a right then to operate.”17

On November 24, at a hearing that lasted no more than five minutes, both Estelle Griswold and Lee Buxton pled not guilty to the charge of violating the 1879 law. Katie Roraback filed a short demurrer contending that the statutes deprived the defendants of both their Fourteenth Amendment liberty and their First Amendment freedom of speech, and Judge J. Robert Lacey postponed a further hearing until December 8 so that both sides could prepare briefs. Harriet Pilpel continued to worry that the Connecticut activists were not taking every precaution or making every argument imaginable, but Lee Buxton told one journalist that he was thinking of having a partially paralyzed patient—i.e., “Jane Doe,” Ruth “Oldendorf”—testify in his behalf at trial.¹⁸

Katie Roraback prepared a twenty-two-page brief for Lacey’s perusal and submitted it just prior to the December 8 hearing. Much of its constitutional argument drew upon Harper’s filings and the Harlan dissent in Poe—the statutes invaded “the most sacred area of family life” and represented an “extreme invasion of the privacy of the marital relation” as protected by “the right to liberty”—but Roraback also made the First Amendment argument which Pilpel had been encouraging. Maretz and one of his part-time assistants, Joseph B. Clark, on the other hand, filed only a three-page brief which did little more than cite the previous Connecticut Supreme Court rulings in Nelson, Tileston, and Poe-Buxton. At the actual half-hour hearing Roraback stressed that “courts are not bound to follow the dead letter of the law where that law is no longer applicable to current circumstances and situations.” She also firmly articulated the basic constitutional claim: “The married person in his own privacy of his own home has a right to engage in marital relations and to do so in such manner as he sees fit—he and she, forgive me, see fit. To hold otherwise would invade the very innermost sanctums of privacy in violation of the rights of individuals to privacy which are embodied in the term ‘liberty’ in the Fourteenth Amendment.”

Julius Maretz most revealingly began his oral presentation to Lacey by reading the Connecticut statute that directed prosecutors to pursue all statutory violations of which they became aware. “We felt it was our duty” to pursue the matter, and “it became incumbent upon our office” to file these charges, Maretz apologetically emphasized. He also noted that unlike the 3 to 2 rulings in Nelson and Tileston, the 1959 Connecticut Supreme Court affirmation of the 1879 statute had been unanimous. Judge Lacey made it clear to both attorneys that that precedent gave him no leeway in considering Roraback’s Fourteenth Amendment liberty argument, but he questioned both counsel as to whether First Amendment grounds had been considered in any of the prior rulings before seeming to indicate that he thought that possibility might well be foreclosed by the modest opinion that the Connecticut high court had issued in Trubek. “I have got to approach this problem with extreme caution,” Lacey stated, indicating that while he initially had thought about issuing a ruling later in the day as to whether the charges would go forward to trial, he now had concluded that he should take everything under advisement and file a written decision sometime later.19

While Lacey pondered a ruling, good old James Morris continued to wonder why a more vigorous and extensive prosecution of PPLC was not being undertaken. He had attempted without success to lobby the governor’s office on the matter, and a week after the New Haven hearing he sent a long handwritten letter by registered mail/special delivery to Connecticut Chief Justice Raymond E. Baldwin asking him to investigate the supposed shortcomings in Maretz’s probe. The fact that Maretz was not pushing harder, Morris alleged, indicated that “something in the case hasn’t got a nice order [sic]. As a father of five children who want protection from these law breakers,” Morris warned that “If they do it in a clinic, next it will be the hospitals.” He ungrammatically declared that “C[onnecticu]t courts have always kept us pure from immorality but are these to be new rules for special people or must they obey the laws too. The Governor said it’s your job, not his.” Baldwin simply acknowledged Morris’s missive without further comment.20

On December 22 Judge Lacey filed a brief decision citing Nelson, Tileston, Poe-Buxton, and Trubek and concluding that no birth control counseling that led to a violation of the use statute could claim protection under the First Amendment. He set a trial date of January 2, 1962, and pro forma subpoenas were issued summoning PPLC’s three volunteer patients to appear as prosecution witnesses on behalf of the state. Estelle told a friend that “without doubt” she and Buxton would be found guilty, and that she had no expectation of any success until their appeals eventually reached the U.S. Supreme Court.²¹

The nonjury trial of State of Connecticut v. Estelle T. Griswold and C. Lee Buxton got underway shortly before eleven a.m. on Tuesday, January 2, before an audience of about one hundred people. Julius Maretz called Detective John Blazi to the stand as his first witness, and Blazi described his and Berg’s initial conversation with Estelle. The birth control pamphlets she had given them were entered into evidence, and Katie Roraback conducted a short and uneventful cross-examination. Harold Berg testified briefly in support of Blazi’s account, and then Joan Forsberg was called to the stand. She recounted her visit to the clinic, and her unused birth control pills were entered as evidence. Marie Tindall followed Forsberg, and after a break for lunch, Rosemary Stevens succeeded her. Journalists were somewhat disappointed at how “surprisingly routine” the trial seemed, and the cordial and relaxed atmosphere was illustrated when Maretz during his questioning of Stevens mistakenly referred to “Dr. Griswold.” “I am trying to promote you,” he apologized, and friendly laughter filled the courtroom as Estelle replied, “You are very gracious.”

Once the prosecution rested, Estelle Griswold took the stand as the first defense witness. Despite objections from Maretz, Katie Roraback led her through a long account of the clinic’s work, and Estelle, alluding to Poe, volunteered that “If the Supreme Court had declared this law a nullity, a dead word and a harmless empty shadow, I do not see how I could commit an offense against such a law.” She was followed to the stand by Lee Buxton, and Roraback led him through a disquisition on the widespread acceptance of birth control. “It is the overwhelming opinion of expert medical testimony in this country that this type of advice is an aspect of medical care which is the responsibility of every doctor who is caring for patients to give when in his opinion the patient should have it.”

The only unusual event of the trial came toward the end of Buxton’s testimony when the ubiquitous James G. Morris stood up from his seat in the spectator’s section, waved his arms, and started speaking. Judge Lacey instructed the bailiff to remove the interloper from the courtroom, and Morris desisted. “All right, I won’t say any more.” “You will conduct yourself properly,” Lacey stated, “or remove yourself from the courtroom.” “You want me to go?” Morris asked. “Is that a choice, your honor?” the bailiff inquired. “No,” Lacey responded, “remove him from the courtroom.”

Roraback attempted to call two physicians who had not been affiliated with the clinic to buttress Buxton’s testimony about the medical necessity of birth control, but a somewhat peeved Maretz successfully objected to virtually every question Roraback asked them. After a brief recess just before five p.m., Lacey offered Maretz and Roraback a choice of whether to hold off on closing arguments until the morning or stay late and finish, and Roraback answered firmly that she would like to proceed. Neither she nor Maretz offered lengthy final remarks, with the prosecutor again emphasizing that so long as the legislature did not alter the statute, he had no choice other than to bring these charges. Once they concluded, Judge Lacey immediately and without ceremony announced that he was finding both defendants guilty and fining each of them one hundred dollars. Notices of appeal would be due within fourteen days.22

Estelle resolutely told reporters that she would continue to provide birth control information to anyone who requested it, and the trial outcome was noted both in national newspapers and in weekly news magazines. A major, well-reported article on the New Haven events in Look magazine drew special coverage in Connecticut papers and reaction pieces in other journals; when one periodical suggested that PPLC would do better with the state legislature than in the courts, Estelle sent off a corrective letter explaining that so long as Roman Catholic state senators were not able to vote in favor of reform or repeal, “the only way that this issue will ever be settled is in the courts.”

By mid-January Katie Roraback had filed the necessary appeal papers, and several weeks later, in line with Connecticut procedure, she submitted to Lacey a sixteen-page draft of the findings that he had to enter into the record before the appeal of Griswold and Buxton’s convictions could be considered by an intermediate three-judge court of appeals. In New York Harriet Pilpel continued to worry about whether the Connecticut matters were being adequately handled, but all the attorneys agreed that early 1963 was the soonest the case would be decided by the Connecticut Supreme Court, hence making U.S. Supreme Court review late that same year the best that could be hoped for.23

All the attention drawn by the trial generated resolutions of support for PPLC from various ministerial and student groups, and by April of 1962 a local PPLC chapter like the one that had helped launch the short-lived New Haven clinic had also been established in Hartford. Press items about PPLC’s forty-five-thousand-dollar 1962 fund drive, however, reactivated the briefly quiescent James G. Morris, who sent a handwritten missive to State’s Attorney Arthur Gorman asking why PPLC should be allowed to raise money in the wake of Griswold and Buxton’s convictions. Morris further suggested that anyone who contributed to PPLC ought to be charged under the aiding and abetting accessory statute, and explained that if the police were not eager to act, “It is up to your office to see that a raid is held.”

Morris received further attention when a production crew from the television show “CBS Reports” visited New Haven in mid-February to film interviews with all the principals. Eventually broadcast nationally in early May, the show divided its attention between the Connecticut controversy and a recent Chicago battle over whether birth control services would be provided at Cook County Hospital. The Connecticut half of the show began with Morris explaining that he was “a hundred percent against birth control, because it’s immoral; it’s the same as prostitution, or abortion, or in any other in those immoral things.” Morris was allowed to detail his extensive efforts to generate a raid or arrests; Julius Maretz repeated his standard explanation that “we are duty-bound as officials, prosecutors, to follow the decisions of our Supreme Court, and we did so in this case.” Lee Buxton explained how the practical effect of the Connecticut statute’s prohibition of clinics was to discriminate against poor women who could not afford to patronize private doctors, and Fowler Harper gave a powerful rendition of Griswold and Buxton’s constitutional argument concerning “their right to advise people with respect to matters of their privacy.” “One of the most intimate and sacred relations of life is the relation of a man and his wife in the privacy of their home. And when the long arm of the law reaches into the bedroom and prohibits a man and his wife doing what they want to do, and what medical advice suggests that they do, it seems to me that this is a merciless invasion of the freedom and liberty of the citizens of this country.”²⁴

Connecticut papers gave considerable attention to the CBS broadcast. The New Haven Register was puzzled as to why CBS narrator Eric Sevareid had spoken of the birth control case as “the Yale project,” since “This was the first those close to the subject here had heard of this reference,” and many state newspapers noted an attack on the show by Father John C. Knott, the new director of the National Catholic Welfare Conference’s Family Life Bureau. Father Knott, who for over a decade had been an official of the Hartford Archdiocese, complained that CBS’s treatment of the birth control battles had been lacking in “objectivity and impartiality.” And several weeks after the CBS special, James G. Morris, always on guard against threats to Connecticut’s morality, filed a complaint with the New Haven police alleging that an article on birth control in a current issue of the Saturday Evening Post magazine violated the 1879 statute. Police department officials told New Haven reporters that they had referred Morris’s complaint to the city corporation counsel.25

By mid-June Roraback and PPLC were becoming increasingly frustrated over Judge Lacey’s ongoing failure to file the “findings” that Roraback had requested in January and which were necessary for moving ahead with Griswold and Buxton’s appeal. Joseph Clark, acting for Maretz, had filed an unremarkable response to Roraback in February, but Lacey’s delay was well beyond the bounds of propriety. Private inquiries were made elsewhere in the Connecticut judiciary, and finally, on July 25—but with an ostensible face date of June 12—Lacey filed the necessary but unremarkable finding. Katie Roraback was thus able to move forward with the necessary paperwork for placing the appeal before the appellate division of the state circuit court, and by late September oral argument in the case had been scheduled for October 19.²⁶

Although Harriet Pilpel still wondered whether Roraback was doing an ideal job, Roraback’s forty-two-page brief for the appellate panel was another solid rendition of Harper’s and Harlan’s constitutional views, emphasizing “the realm of familial privacy” and privacy as an aspect of liberty. The oral argument itself, between Roraback and Joseph Clark, took place in New Haven before a three-judge panel that included Bernard Kosicki, who seven years earlier had been Roraback’s opposing counsel in Fowler Harper’s successful land-fraud suit. The argument itself was uneventful, and the PPLC activists once again settled back to wait for a decision. Come mid-December a disappointed Lee Buxton complained to one reporter that “If the medical profession were as desultory as lawyers, most of our cases would be dead by this time.” Estelle told one correspondent that they knew they would lose there too, as well as in Connecticut’s highest court, but that they remained confident that the U.S. Supreme Court would strike down the statute once the case got there.²⁷

Other than the slow progress of State of Connecticut v. Estelle T. Griswold and C. Lee Buxton, PPLC’s situation and the birth control scene were relatively uneventful. Connecticut’s Consumer Protection Commissioner launched an effort to coerce pharmacies to remove contraceptive foam from their shelves after a Torrington teenager was discovered to have purchased some, but widely reported results from a new Gallup national survey showed that some 72 percent of respondents—and 56 percent of Roman Catholics—now favored open availability of birth control information. PPLC, finding itself too cramped for space on the second floor of 79 Trumbull Street, purchased for thirty-five thousand dollars a wooden frame house at 406 Orange Street, right around the corner from Estelle’s home at 40 Trumbull. Although the building came with a carriage house, the main structure required more extensive, and expensive, renovations—about twenty thousand dollars—than had been planned, and only in late November did PPLC shift its offices to the new location. Six weeks later PPLC also opened an information office in Hartford, staffed by local volunteers, which Estelle and others hoped would be the beginning basis for opening a Hartford clinic once the anticontraception statute was indeed voided.28

Both Fowler Harper and the ACLU’s Mel Wulf experienced considerable intellectual excitement when they learned of a new law review article expanding on Justice Harlan’s powerful advocacy of Fourteenth Amendment “liberty” in his Poe dissent by New York University law professor Norman Redlich. “To assert that the people have certain rights other than those specifically mentioned in the Constitution would not dilute the Bill of Rights but would add to it,” Redlich contended. “There are two possible paths to travel” in advancing such an interpretation, he explained. One—like Harlan—“is to revert to a frankly flexible due process concept even on matters that do not involve specific constitutional prohibitions. The other is to attempt to evolve a new constitutional framework.” The principal building block in such a new framework, Redlich advocated, ought to be a new appreciation of the meaning of the otherwise extremely obscure Ninth Amendment to the U.S. Constitution—“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Especially when read in conjunction with the neighboring Tenth Amendment, Redlich said, the message was clear that the framers of those amendments thought that “words were considered inadequate to define all of the rights which man should possess in a free society.” Hence there were express constitutional grounds for identifying and protecting “rights adjacent to, or analogous to, the pattern of rights which we find in the Constitution.” Simply because “there exists no purely objective set of criteria” for determining what those unenumerated rights were, “does not mean that they do not exist.” Marital privacy in the context of contraception, Harper and Wulf both realized, was a seemingly ideal example of the sort of constitutionally unspecified but clearly protected right that Redlich was discussing.29

On January 17, 1963, the three-judge Appellate Division panel, in a unanimous opinion authored by Kosicki, unsurprisingly affirmed the convictions of Estelle Griswold and Lee Buxton. They held that the prior Connecticut Supreme Court rulings reaching back to Nelson were controlling, and suggested that the underlying legislative purpose of the 1879 statute must be to encourage population growth: “each civilized society has a primordial right to its continued existence and to the discouragement of practices that tend to negate its survival.” The panel formally certified Roraback’s constitutional claims to Connecticut’s high court, a move that some thought would speed consideration of the appeal. Lee Buxton termed the opinion “absolutely incredible,” and by the end of January Katie Roraback had filed the appropriate papers with the Connecticut Supreme Court. On February 19 the justices granted the petition, with oral argument likely to occur either in June or early in the fall.³⁰

PPLC was preparing to go through the motions of sponsoring a repeal bill in the 1963 Connecticut legislature, but the surprising birth control news of the spring came when Boston Archbishop Richard Cardinal Cushing told a local radio audience that the Roman Catholic church no longer advocated anticontraception statutes such as those in Massachusetts and Connecticut. “Even in that field,” the Cardinal stated, “I have no right to impose my thinking, which is rooted in religious thought, on those who do not think as I do.” If another legislative reform effort or referendum drive were to occur in Massachusetts, he added, the church’s reaction “would be just to explain our position, but not to go out campaigning.” Somewhat similarly, when the brief and uneventful legislative hearing on the 1963 Connecticut repeal bill took place on April 11, “the room—filled mostly with women—gasped and then broke into applause when a call for opponents brought no one to his feet.” Joseph P. Cooney was indeed present, but he told curious reporters that he had simply filed a written statement with the Public Health and Safety Committee recommending that no action be taken until the state supreme court had ruled on the New Haven appeals. Public impressions of an ongoing Catholic shift were reinforced once again two weeks later when Massachusetts physician John Rock—himself a good friend of Richard Cardinal Cushing—published a small but heavily publicized book entitled The Time Has Come: A Catholic Doctor’s Proposals to End the Battle Over Birth Control. Stories on Rock’s volume appeared in most Connecticut newspapers and in several national magazines, further strengthening the perception that the decades-long birth control controversy might be about at an end.31

Unfortunately for Estelle Griswold, however, the spring months of 1963 were very full of controversy even without any efforts by birth control opponents. Instead PPLC was deeply wracked by internal controversy stemming from the 1962 purchase and renovation of its new offices at 406 Orange Street. Several members of the New Haven Planned Parenthood chapter had convinced themselves that the state league had taken on far too great a financial burden, but they also were upset at the nascent suggestion that the carriage house at the rear of the property would be purchased by Estelle and Dick Griswold as a new and probably permanent residence. Estelle’s interest in the possibility stemmed almost wholly from the fact that Dick, a lifelong heavy smoker, was suffering more and more from emphysema and had an increasingly difficult time coping with the many flights of stairs in their house at 40 Trumbull.

In a relatively short time the internal dispute took on an extremely nasty tone, with the New Haveners increasingly indicating that their objections were less to the carriage house proposal than simply to Estelle Griswold personally. Even Estelle’s closest friends would readily acknowledge that she was “super-aggressive,” stubborn, “sometimes a bit maddening,” and “something of a snob.” “There was never a dull moment with Estelle,” one PPLC board member laughingly remembered, but the New Haven women alleged that they felt both stifled and patronized. Estelle responded to their initial complaints by strongly defending the financial advisability of the Orange Street purchase, but the internal attacks took a very significant emotional toll. Believing to at least some degree that the state league officers had not mounted as energetic a defense of her as they might, Estelle sent PPLC President Lucia Parks a formal letter of resignation on April 17. Expressing “sincere regret,” Estelle asked that it take effect on May 27. “After nine and one half years with Planned Parenthood and with the best relations with officers and board, working in mutual confidence, you may be assured that I have not made this decision without serious thought. However, the divisive element that has recently developed, and apparent lack of confidence on the part of certain members of the Board makes it impossible for me to continue.” She added in closing that “I have also consulted with our attorney, Miss Roraback, and find that my resignation will in no way jeopardize the lawsuits.”32

Word of Estelle’s threat created considerable consternation throughout PPLC as the news spread. Former president Julie Howson, whose involvement went back to the 1920s and who was now very aged and infirm, wrote to Parks—and Griswold—to protest such a “dreadful” and “appalling” development. “How can we get along without Mrs. Griswold? Her really remarkable ability as a speaker, her first rate hold on the many problems that we have to meet, her personal charm and the fact that she can outargue anyone all seem to me the elements necessary to an executive” director. Even more outraged was another senior veteran, Hilda Crosby Standish. “It must not be!,” Standish began a note to Estelle. “This organization to which you have given your life blood needs your vision, wisdom, and enthusiasm as much now, perhaps more, than when first you manned the helm and dragged it up from the depths.” Knowing something of what had been brewing, Standish acknowledged that “Your feeling of utter frustration is indeed understandable. I am sure I would react in the same way, for life is too short to work under a constant emotional strain, yet because you have given so much and brought the Connecticut League so far you deserve to see the job finished. We would stand to lose much of what has been gained without your continuing magnificent leadership. If the local group does not see the absolute necessity of cooperation, and the Board beg you to reconsider, I will lose my faith in the women of Connecticut.”

To the PPLC board, Hilda Standish spoke even more strongly. The danger of Estelle’s resignation “saddens and alarms me. I beg each of you to try to realize what this might mean if accepted.” Estelle had performed “an absolutely unique job” and it would be “impossible to replace her.” Standish retraced PPLC’s history from the Nelson defeat to the time of Estelle’s hiring, comparing that era to the years since 1953:

In this job Estelle has given her all, with results that are almost unbelievable. It has been her vision that has inspired us, her courage that has made us proud, her sacrifice in time and energy that has made the Connecticut League one of which we may all be proud. Almost single handed she has brought it up from the depths, but if she is to continue at the helm it must be with the cooperation and respect of everyone of us. To do the job we must have a strong leader, and in being strong she must be allowed to take forward steps with our full support. The constant emotional strain of dissension in our ranks is more than she can be expected to endure.

Lucia Parks and the other top PPLC officers were in full agreement with Hilda Standish’s insistence that the board act in such a way that Estelle would choose to withdraw her resignation. Several members drafted resolutions supportive of Estelle in preparation for a penultimate May 2 meeting of the board’s executive committee, and when that session convened, Parks began it by reading Estelle’s letter of April 17 in full. Former president Bea Hessel immediately moved that the resignation not be accepted, and that motion carried unanimously. With Estelle present, Hessel then made a second motion, which was also promptly passed, requesting that the board endeavor to determine what would make Estelle reconsider her resignation. “Mrs. Griswold,” the minutes recounted, “expressed the feeling that it was impossible for her to work effectively without proper support from the Board, and that the policy and relationship between the Executive Director, the State Board, and the local leagues must be clarified. She stated that it is not proper for members of local leagues to act independently without consulting either the Executive Director or the Board. This kind of action causes confusion, puts the Director in an impossible position, and in the end hurts the cause for which we are all working.”

Lucia Parks then noted the many letters similar to Howson’s and Standish’s that she and other officers had received commending Estelle and asking that her resignation be withdrawn. A prepared resolution expressing appreciation for Estelle’s leadership and pledging full cooperation in the future was read and adopted, as was a second motion in which the Board expressed regret that Estelle might mistakenly have thought that it had anything other than full confidence in her. Bea Hessel read a letter of praise for Estelle that Fowler Harper, who was teaching in Miami that spring, had sent to the board, and then Estelle spoke up and announced that she indeed would withdraw her letter of resignation. Lucia Parks thanked her on behalf of the board for that decision, and former president Claudia McGinley moved that copies of all the resolutions and commendatory letters be sent to all members of the entire board.33

That three-hour meeting largely but not completely resolved PPLC’s internal battling. Estelle ended any further discussion of the carriage house project, and the board, seemingly in return, authorized her to use PPLC’s office car, a small Fiat, for other than workaday obligations. PPLC’s annual meeting reelected Lucia Parks for a third and final year as president, and elevated a relative newcomer to the board, Cornelia Jahncke of Greenwich, to the number two post of first vice-president. The 1963 Connecticut legislative session developed in much the same way as previous ones, with committee approval of a repeal bill being followed by easy passage in the house—149 to 66—and no floor action at all in the senate. By the summer of 1963, PPLC once again was in a position of having to wait for the very slow processes of appellate litigation to gradually move forward.34

Katie Roraback spent a good deal of the summer preparing a sixty-two-page Griswold-Buxton brief for the Connecticut Supreme Court, and throughout it all she once again had to devote considerable time to fending off intrusive suggestions from PPLC’s ostensible New York allies. ACLU Executive Director John “Jack” Pemberton wanted the ACLU to file an amicus brief in the Connecticut court as well as eventually with the U.S. Supreme Court, and he also suggested that perhaps a parallel amicus brief in support of PPLC could be submitted to one or both such courts on behalf of a small, professorially oriented Roman Catholic group, the Catholic Council on Civil Liberties. Roraback enthusiastically welcomed both proposals vis-à-vis the U.S. Supreme Court, but again insisted that the relative rarity of amicus briefs in the Connecticut court would make any such filing—especially by an out-of-state group—either unhelpful or perhaps potentially harmful. Harriet Pilpel, worried about Roraback’s own plans, complained privately to PPFA executives that “My general impression is that Catherine has no intention of doing more than filing the same kind of skimpy legalistic document she filed on previous occasions,” and one PPFA board member and attorney very unsubtly wrote Roraback and asked to see a draft of her proposed brief. Roraback politely reminded him that the chances of the Connecticut court reversing Griswold and Buxton’s convictions were “almost negligible,” but in mid-August she did send an advance copy of her brief to Pilpel, who replied forthrightly that it was “a very good job.” The lengthy filing was a significantly more substantive document than anything the PPLCers had generated since Harper’s Supreme Court brief in Poe, and it made explicit use of both the Harlan and Douglas dissents there as well as Norman Redlich’s law review article and other scholarly sources. It made repeated references to judicial recognition of the “right to be let alone,” and emphasized the “constitutional protections inherent in this concept of privacy.” After reviewing it, Pilpel told Roraback that “It is difficult to imagine a more fundamental civil liberty than the right to decide whether and when to have children.”³⁵

The “profound ferment” within Roman Catholic circles concerning birth control continued apace in the wake of John Rock’s book. Journals like Commonweal continued to publish essays noting that measures such as the Connecticut statute were “bad” even “strictly in Catholic terms,” but some reactionaries did strike back. Father Knott of the National Catholic Welfare Conference’s Family Life Bureau proclaimed that “the Catholic Church has always, does now and will continue to consider contraception as a serious moral evil,” and Knott even attacked Rock personally, declaring that he was “not a Catholic, but a propagandist for Planned Parenthood.” More significantly, however, a liberal Notre Dame theologian, writing in a popular Protestant journal, advocated that “no one group may impose its distinctive creedal or moral viewpoint through the clenched fist of legislative fiat.” When one did, “it is an utterly unwarranted infringement of the constitutional rights of others and is doomed to failure. Its only result is the generation of bad blood, bitterness, hatred and strife.” Connecticut and Massachusetts’s political experiences since the 1920s could easily be cited to support that conclusion.36

On October 1, six weeks in advance of oral argument before the Connecticut Supreme Court, assistant circuit prosecutor Joseph Clark, who largely had taken over responsibility for the Griswold-Buxton case from Julius Maretz, filed a modest twenty-one-page brief with the high court. Much of his material was utterly familiar, but Clark did provide a new twist to some themes, such as in rebutting Buxton’s medical rationale. “The State is of the opinion,” Clark wrote, “that the practice of medicine was directed to the treatment, cure, and prevention of disease. Certainly pregnancy for a healthy married woman cannot be a disease.”

The November 12 oral argument was largely dominated by John H. King, who had ascended to the chief justice’s chair with the retirement of Raymond E. Baldwin three months earlier. Katie Roraback told the five member court that the right to privacy was receiving “increasing recognition” in the United States, and sought to emphasize the importance of marriage. “Since the marital relationship is a private one, can the state invade and regulate it?,” she asked. “Persons have the right to the pursuit of happiness and this must include a happy marriage and the right to plan for children.” King told Roraback that her “most telling argument” was this contention concerning the statute’s very broad sweep, and Roraback also followed up on King’s suggestion that the statute’s failure to differentiate between married and unmarried individuals might similarly raise a question.

Chief Justice King gave Joe Clark a distinctly harder time than he afforded Katie Roraback. Why could it be thought that a “reasonable General Assembly could have felt that this was a proper way to curtail illicit relationships between unmarried persons,” King asked him. “What we’re trying to determine is the reasonableness of this sweep which covers everybody.” Clark parried, saying that the state had a proper interest both in protecting morality and in guarding the size of its population. But King persisted. “Does this law really protect morality?” he quizzically asked. The statute’s “prohibition of use, instead of sale, presents policing problems,” he noted. “How are you going to know if someone uses contraceptives unless they tell you?” Clark dodged again, but King repeated his query. “How do you know about the use unless the user tells you? I assume you are not going to raid bedrooms?” Clark assented, but King returned to his basic point about reasonableness and overbreadth: “Would it be a reasonable approach to abolish all liquor to prevent drunken driving?” Clark replied that married couples had the alternative of abstinence, and Julius Maretz jumped in to assert that if that law was voided, there would be an increase in the incidence of illicit intercourse in Connecticut. The oral argument went on for almost two and a half hours before it concluded, and Estelle Griswold, one of about a dozen PPLC onlookers, told her colleagues that she thought it had gone well.37

PPLC once more sat back to wait for a decision, and in early December the New Haven women publicized the opening of a birth control information center in the PPLC offices at 406 Orange. The announcement had the unintended effect of reactivating one prior participant in PPLC’s work, James G. Morris, who on the morning of December 9 appeared outside of 406 Orange with a picket sign saying “The Law is The Law, or is it? Morality is in danger.” Morris continued his one-man demonstration long enough for newspaper photographers to arrive, and the next day wire-service pictures of Morris’s protest appeared in most Connecticut papers accompanied by descriptive captions. The Associated Press, describing the photo, noted that “Morris holds rosary in right hand.”

One animated PPLC board member wrote Estelle to express regret that they had to put up with Mr. Morris’s ongoing antics, but Estelle quickly wrote back to correct her understanding of what was taking place. “Actually Mr. Morris is doing so much for us and if we do not heap coals on his head and give some Roman Catholics reason to come to his defense, we gain their support just through their shame for him.”

Morris’s contributions notwithstanding, the winter and spring months of early 1964 were privately difficult for Estelle. She and Dick were now, because of his health, living in a downtown high-rise apartment building rather than around the corner on Trumbull, but Dick’s emphysema was worsening significantly and in March he had major surgery. Most people who knew Estelle through PPLC saw very little of Dick; at least one president, as well as Lee Buxton’s wife Helen, never actually met him. But Hilda Standish and other special, longtime friends could tell that Dick and Estelle were an especially close couple, even if his deteriorating condition was something she almost never mentioned at the office. Similarly, Fowler Harper, who was again teaching for the spring at the University of Miami Law School, was also undergoing treatment for prostate cancer, and Fowler’s stiff drinking and heavy smoking, just like Dick Griswold’s, were certainly not therapeutic.38

In late April 1964 Cornelia Jahncke succeeded Lucia Parks as PPLC president, and then, two weeks later, the Connecticut Supreme Court issued its decision affirming Estelle and Lee Buxton’s convictions. The unanimous and very brief opinion, written by junior Justice John M. Comley, offered a familiar recitation of how Nelson, Tileston, Poe, and Trubek were controlling precedents. This appeal too, just like those prior rulings, was governed, Comley declared, by “the principle that courts may not interfere with the exercise by a state of the police power to conserve the public safety and welfare, including health and morals, if the law has a real and substantial relation to the accomplishment of those objects.” Estelle told reporters that she was “very disappointed,” and Lee Buxton termed the Connecticut court’s perspective “unrealistic,” but Katie Roraback announced that she and Fowler Harper were already at work on Griswold and Buxton’s next appeal, to the Supreme Court of the United States.³⁹

Virtually no one was actually surprised by the state court’s ruling, and local editorialists looked forward to the U.S. high court doing Connecticut a favor by finally voiding the law that state legislators still could not bring themselves to strike. One New Haven paper noted that while all four Poe dissenters remained on the Supreme Court, two members of the five-vote majority—Felix Frankfurter and Charles E. Whittaker—had departed, and that one or both of their replacements—Byron R. White and Arthur J. Goldberg—could well make for a different majority this time. Fowler Harper, in Miami and about to undertake a six-week teaching stint in Puerto Rico, told Estelle he was looking forward to preparing the jurisdictional statement for the high court, and part-time assistant prosecutor Joe Clark, appreciating how much work now lay before him, unsuccessfully sought assistance from the state attorney general’s office. Harriet Pilpel and Harper agreed that once again there would be both a PPFA amicus brief and an ostensibly independent one on behalf of prominent physicians, and ACLU staffers—with vexatious encouragement from the ageing but still active Morris Ernst—revived the idea of a supportive amicus brief from the Catholic Council on Civil Liberties (CCCL). In early August Buffalo law professor Robert B. Fleming, who would write the CCCL brief, met with Pilpel and Ernst, and by that same time Harper had a draft of the jurisdictional statement ready for colleagues’ review.40

Harper formally filed the Griswold appeal and the jurisdictional statement with the U.S. Supreme Court in early September. He argued that the two convictions raised three principal constitutional questions: whether the 1879 statute deprived Griswold, Buxton, and their patients of liberty in violation of the Fourteenth Amendment’s due process clause, whether the statute violated their First Amendment right to free speech, and whether the statute both on its face and “as applied to married patients of these appellants and other married couples” represented “an unreasonable and unjustifiable invasion of their privacy contrary to the Fourth, Ninth and Fourteenth Amendments.” The document had more than its share of errors—such as calling Justice Brennan’s concurrence in Poe a dissent, and referring to another opinion written by Justice “Stuart”—but it laid heavy emphasis on the liberty and privacy themes that Justices Harlan and Douglas had articulated in their Poe dissents. Harper devoted some attention to social policy benefits of birth control, observing with regard to the new federal “war on poverty” that “to fight poverty without birth control is to fight with one hand tied behind the back,” but the privacy concept received his most extended attention. The Ninth Amendment, he stressed, either “as directly applicable to the States or as made so by the Fourteenth, should be interpreted to protect aspects of what has been called the rights of privacy as a protection additional to that afforded by other Amendments.” The “so-called ‘right of privacy,’” Harper went on, “is a broad general term which in fact includes a number of ‘rights’ or ‘interests.’” The privacy claim that Buxton and Griswold’s female clinic patients had a fundamental right to use birth control is “certainly closely akin to other aspects of privacy specifically recognized in the Constitution.” Indeed, “freedom from coerced marital conformity in the bedroom” was “in many respects” a “far more important” privacy rights claim than some—e.g., the Third Amendment’s prohibition against the quartering of troops in private homes during peacetime—that were expressly stated in the Constitution. Noting again the Ninth Amendment’s recognition of other rights “retained by the people,” Harper argued that “the invasion of the interest of married spouses in the sanctity and privacy of their marital relations … is a violation of precisely the kind of ‘right’ which the Ninth Amendment was intended to secure.”41

Thanks in part to the influence of Norman Redlich’s 1962 article, Harper’s initial filing in Griswold was constitutionally a good deal more robust and profound than the analyses that had been submitted in Poe. PPLC’s board, in part because of their six-year indebtedness to Harper, and in part because of his clearly weakening health, resolved soon after that filing to bestow a several-thousand-dollar “gift” upon their ailing counsel. Estelle informed Miriam Harper of the news first, and Fowler then wrote her to say that the gesture had “utterly overwhelmed” him. “I would be less than frank if I didn’t say that I am delighted,” Harper told her, “although my first reaction was that I should not accept such a fee. However, it didn’t take me long to change my mind.”

Estelle was beginning to worry that even though PPLC was in stronger financial shape than ever before, the organization nonetheless was not financially ready to begin providing the clinic services that would be obligatory should Griswold and Buxton v. State of Connecticut prove successful in the U.S. Supreme Court. Estelle’s insistence that new fund-raising would have to be undertaken, particularly by the PPLC local leagues that would be expected to sponsor future clinics, however, renewed the deep antipathy toward her that had continued to fester among some of the New Haven members. New Haven president Dorothy Giles informed PPLC president Cornelia Jahncke that “there is no possibility of effecting any mutual understanding” between the New Haven group and Griswold, and complained about “the complete dominance of the board by the Executive Director.” In late September PPFA sent a senior staff member up to New Haven to try to mediate, since Giles and her cohorts were insisting that the principal issue was the question of how much autonomy local groups should have vis-à-vis the state league, but instead the New Haveners treated the visitor to a nonstop personal lambasting of Estelle Griswold. “The Executive Director is a rigid, unyielding person who never sees but one side of a question and who does not allow anyone or anything to stand in her way,” the New Haven president perhaps shrewdly asserted. “It is impossible to work constructively with her,” in part because of Griswold’s supposed “inability to accept new ideas.” It was further alleged that Griswold “does not let us forget that we thwarted her desire to have a home in the barn” or carriage house, and the New Haveners also pointedly asserted that it would be “an impossibility” to “work with the Executive Director on a clinic project.”

Estelle herself dismissed the criticisms as “bargain basement bickering and brainwashing” and told PPFA’s Fred Jaffe that she did not “know of any legitimate basis for these complaints.” Cornelia Jahncke firmly reprimanded the New Haveners for failing to submit pro forma reports to PPLC and also for wanting to discuss what should be done should the Supreme Court appeal be lost rather than won, and by late October the New Haven group was discussing whether to petition PPFA for direct affiliation with the national federation, wholly separate and apart from PPLC. PPFA reluctantly convened a New York meeting of all the warring parties, and Estelle complained that seemingly every new New Haven league member was being “given an orientation session in non-cooperation and personal animosity toward me and other members of our staff.” Estelle also volunteered that in the fourteen years she had lived in New Haven, she had never encountered any of PPLC’s complainants as active members of any other local civic group.

The New York session settled nothing, but as word of the renewed tensions spread, Estelle’s supporters once again spoke up. An angry Lee Buxton, believing that PPFA was being insufficiently supportive of Estelle, sent PPFA president Alan Guttmacher a letter resigning from his largely pro forma role as chairman of PPLC’s Medical Advisory Committee. PPFA’s Jaffe reassured him that “We do recognize Estelle’s great contributions and have told her so in person and in other ways repeatedly.” A board member from Newtown wrote the New Haveners to rebut their attacks on Estelle and to assert that her “astute and judicious leadership” had given “a new impetus” to PPLC. “With Mrs. Griswold’s broad range of public activities and contacts in every walk of life,” she had made it possible for PPLC to take part in many social welfare projects where Planned Parenthood participation had previously not been welcome. In particular, this board member declared, “I have known Mrs. Griswold too long to believe that ‘social standing’ is of undue importance to her.… I find this particular criticism not only untrue but bordering on the ridiculous.”42

Nonetheless, at a PPLC Executive Committee meeting on November 6, Estelle once again tendered a formal letter of resignation, this time to take effect December 1. An executive session discussion decided that the New Haveners ought to be put in their place and that both Buxton and Griswold should be asked to withdraw their resignation letters. However when the full board met eleven days later, New Haven president Dorothy Giles twice declared that her group could not and would not work with Estelle Griswold. A week later the executive committee resolved that eventual opening of a clinic at the 406 Orange Street building would be undertaken by PPLC itself, and not in any way by the local New Haven group, who would be told that whatever their plans might be, they should find space elsewhere. That declaration seemed to establish at least a temporary internal truce, and Griswold and Buxton both withdrew their resignations.43

While PPLC had been preoccupied with its internecine disputes, assistant prosecutor Joe Clark had filed his own Supreme Court motion asking that the Griswold appeal be dismissed for lack of a substantial federal question and because the two convictions were virtually identical to the ones that the high court had refused to review or reverse in Gardner twenty-six years earlier. Harper filed a short and succinct rebuttal, and Harriet Pilpel informed him that she had been told by liberal Catholic academician Robert F. Drinan that work was indeed progressing on a CCCL amicus brief. But at the same time that Pilpel was sending friendly and reassuring missives to the increasingly ill Harper, she was simultaneously warning PPFA’s Alan Guttmacher and Fred Jaffe about potentially “serious defects” and “deficiencies” in the Griswold record and appeal, particularly with regard to Harper’s jurisdictional statement, due to the fact that “our advice in most substantial respects has not been followed” by Harper and Katie Roraback. That contention was factually incorrect in the extreme, but Pilpel nonetheless expressed “astonishment and dismay” to the PPFA executives that Harper had had his three-page reply to Clark’s motion printed and filed without seeking her prior approval. Perhaps Pilpel was simply seeking to avoid future criticism should something go wrong with Griswold in the Supreme Court. Or perhaps being in New York simply did make one superior and smarter, even relative to someone with Harper’s professional record, a phenomenon that the PPLCers had of course had many prior opportunities to ponder.⁴⁴

In mid-October the national wire services and all the Connecticut papers gave considerable play to a further declaration that Boston Archbishop Richard Cardinal Cushing favored terminating Roman Catholic opposition to repeal of anticontraception statutes. The occasion for the renewed attention to even the Catholic hierarchy’s apparent liberalization was an article in the New England Journal of Medicine by a young Catholic doctor, Joseph L. Dorsey, whose close relationship to the Boston archdiocese was well-known; perhaps uniquely, the article carried a one-paragraph introduction and endorsement by the monsignor who was editor of the archdiocesan weekly newspaper. The physician author noted in the context of the Massachusetts statute that “After talking with many well informed priests about this law, I have failed to find one … who favors retention” of it. Cushing himself had recently acknowledged that “although natural law does not change, our here-and-now interpretation and awareness of it does,” but Dr. Dorsey concluded that the “change in attitude” had come about “primarily through the development of a different attitude toward laws in general in a pluralistic society.” A forthcoming survey, however, found that 78 percent of Catholic respondents—as compared with 82 percent of Protestants, and only 53 percent of Catholics just two years earlier—now agreed that “birth control information should be available to anyone who wants it.” And, quite similarly, demographic studies disclosed that more than half of married Catholic women were now using methods of birth control that the church hierarchy continued to condemn. Perhaps for once the clergy—although grudgingly if not almost furtively—were following the laity rather than vice-versa.45

Within the U.S. Supreme Court, initial consideration of whether to hear the Griswold appeal was scheduled for the justices’ private conference of December 3, and in advance of that discussion summary memos were prepared by the young clerks in at least four of the chambers. For three of them there was no doubt, Joe Clark’s contentions notwithstanding, that Griswold—or Poe “round two” as John Harlan’s clerk, Michael Maney, labeled it—was an important appeal warranting full consideration. However, John Hart Ely, one of Chief Justice Earl Warren’s three clerks, introduced it to the Chief Justice in a manner that almost seemed reminiscent of a horror movie sequel—“Dr. Buxton is back”—and depending on one’s constitutional tastes, maybe it was. “For me, this is not an easy case on the merits,” Ely informed Warren, but nonetheless it was “clear that the issues are significant.” Warren and all eight of the other justices agreed on at least that latter point, for when the Griswold appeal was considered at the December 3 conference, all nine members of the Court voted unanimously that the case should be heard.⁴⁶

On Monday, December 7, the Court announced publicly its acceptance of the Griswold appeal. Estelle told reporters she was “very gratified” by the action. “We’re quite confident that when the court hears the case, this will be the final episode.” Lee Buxton sounded similarly optimistic, commenting that “in the past five years the thinking on this issue has changed considerably,” both in Connecticut and elsewhere. Estelle agreed, explaining that PPLC would move to reopen a clinic as soon as the old 1879 statute was finally voided. “I think the time has come. Times have changed, and there is a dialogue going on all over.”47

But Estelle and Lee’s happiness that the decisive round of PPLC’s forty-two-year struggle to make birth control legal was finally beginning was largely vitiated by an advancing tragedy whose terribly ironic timing made it all the more painful. By the time of the court’s actual decision to take Griswold and face the inescapable constitutional challenge that it had so clumsily ducked in Poe, Fowler Harper entered Grace-New Haven Hospital for what he knew would be the final time.

Fowler had borne up under the increasing pain of his terminal cancer with the same combative determination he had long brought to all his many endeavors. Unbeknownst to him, the New Haven office of the FBI had just renewed his membership in the Bureau’s top-secret list of dangerous subversives to be rounded up in the event of some national emergency. In addition to its decades-old evidence of such dastardly deeds as that 1946 ballot petition signature and membership in the National Lawyers Guild, this year the New Haven office was able to cite much fresher evidence, a vintage Fowlerism that Harper had uttered to a tabloid news reporter who had asked him why it seemed that his political positions often followed the communist line. The error, Harper told the reporter, was in looking at the matter backward, so to speak. It wasn’t that Harper followed the communist line, just that “sometimes it appears that the communists follow my line. They’re always welcome to agree with me, but I don’t see how I can be blamed when they do.”

Only a few months before the onset of his final illness Fowler had finally completed a longtime labor of love, a biography of one-time Supreme Court Justice Wiley B. Rutledge, a Harper friend whose relatively brief service on the Court had been cut short by his sudden death in 1949. Fowler also had been energetically and successfully pursuing a libel suit against his old Yale bête noire from a quarter-century earlier, William F. Buckley, Jr. Buckley’s National Review magazine had editorially alleged that Harper and other initiators of a 1962 petition opposing American military involvement in Vietnam had been communist-inspired, and Fowler’s litigious nature would not let that aspersion pass unanswered. Just before Christmas of 1964 a New York trial court judge ruled in Harper’s favor, and some months later Mr. Buckley settled the suit by making a payment of more than thirteen thousand dollars.⁴⁸

Tuesday morning, December 8, someone in the clerk’s office at the Supreme Court attempted to reach Fowler, only to be told by Miriam that he was in the hospital and that she would have someone else get in touch with them. Miriam spoke with Estelle, and later that day Estelle went to Grace-New Haven to ask Fowler what they should do. Fowler already had privately raised the issue with his longtime friend and colleague Tom Emerson, and now he told Estelle that the time indeed was at hand for formal responsibility for Griswold to be passed to Tom. Estelle sent Emerson a friendly official letter welcoming his willingness to assume PPLC’s cause, and tried to reassure Fowler, or herself, that of course his condition would improve.

From a distance many people thought of Tom Emerson and Fowler Harper as political if not personal twins. Up close, however, they were stylistic opposites. Tom like Fowler was a New Deal veteran who had been an active leader of the National Lawyers Guild; shortly after joining the Yale faculty in 1946 he had briefly been the Connecticut gubernatorial candidate of Henry Wallace’s Progressive Party. Fifty-seven years old when he inherited Griswold from Fowler, Tom had graduated from both Yale College and Yale Law School before going to Washington; since joining the Yale faculty his most notable achievement had been coauthoring an innovative and highly praised casebook, Political and Civil Rights in the United States. After his first wife passed away in 1958 he remarried, and Ruth Calvin Emerson had helped prepare the ACLU amicus brief in Poe. A deeply committed civil libertarian, Tom maintained an active interest in a wide range of political and legal issues. But highly unlike the outgoing and extravagant Fowler Harper, Tom Emerson was a very reserved and undramatic man, a “very unemotional” teacher even when he dealt with subjects about which he felt strongly. People who expected a fire-breathing leftist were again and again surprised that Tom Emerson in person—as several students and colleagues all described him—was simply “very, very staid.”49

Within two days of Estelle’s visit to Fowler and her formal note to Tom, Emerson was hard at work trying to get up to speed on Griswold as quickly as possible. Now that the Supreme Court had agreed to hear the appeal, the appellants’ brief was due in Washington in approximately eight weeks. Emerson read through Fowler’s files in preparation for one meeting with Buxton, Roraback, Estelle, and Cornelia Jahncke and another one with Harriet Pilpel. On December 16 Tom notified the Supreme Court that he would be assuming Fowler’s role, and although Fowler was in Lee Buxton’s words “gradually losing his strength,” Tom was able to have several conversations with him about the case before the end of the year. When PPLC’s executive committee met for the first time in 1965 on January 7, Estelle and Cornelia Jahncke obtained approval to make an additional gift of twenty-five hundred dollars to Fowler immediately. The gesture came just barely in time, for early the following morning Fowler Harper died at Grace-New Haven Hospital.

Estelle and Lee both felt a very deep sense of loss. Several weeks later at a memorial service at the law school Gene Rostow spoke of the “serenity” with which Fowler had faced his “long and painful” illness, and Wiley Rutledge’s son Neal spoke of the “trace of loneliness, and the courage to be alone, that added a quality of mystery” to Fowler’s character. Federal judge William H. Hastie spoke of his friendship with Fowler going back to the late 1930s in Washington, and Tom Emerson lovingly spoke of how Fowler had been “one of the country’s best and most belligerent watch-dogs.… At times I thought he was quixotic; he thought I was a compromiser.” Tom spoke of how much energy and commitment Fowler had put into first Poe and then Griswold; left unspoken was the probability that Fowler’s most important legacy, one that he had not lived to see, still lay ahead of him, perhaps five months in the future.50

In mid-January Tom Emerson had his first conversation with his opposite number, assistant prosecutor Joe Clark. Clark too was hard at work on his brief, and fairly frustrated that neither his new superior, circuit prosecutor Philip Mancini, nor state officials in Hartford had provided him much in the way of support or assistance. A friend and colleague, Irwin P. Harrison, was giving him some help on procedural matters, but a formal request for more extensive aid resulted only in the pro forma appointment of the recently retired former circuit prosecutor, Julius Maretz, as a supposed special assistant. Clark himself was nonetheless repeating Raymond Cannon’s odd precedent from Poe of refusing to give customary consent to the routine filing of amicus briefs that would support Griswold and Buxton. Requests from Pilpel’s office, on behalf of PPFA, from the ACLU, from Whitney North Seymour for many of the same prominent physicians who had supported Poe, and from Robert Fleming for the Catholic Council on Civil Liberties were all turned aside with the assertion that Clark “fail[ed] to see” how any one of the briefs “would serve any useful purpose.”⁵¹

By late January final drafts of Emerson’s and several of the amicus briefs were being privately circulated. Pilpel and her deputy, Nancy Wechsler, pronounced Emerson’s expedited work “simply superb,” and PPFA’s Fred Jaffe was enlisted to supply Tom with up-to-date demographic and medical citations. Lee Buxton was similarly impressed with Emerson’s feat but reprimanded Whitney Seymour, who once again was responsible for the PPFA-sponsored doctors’ brief, for a PPFA letter that spoke of Griswold as “our” case. Otherwise, aside from some modest financial haggling, the Connecticut–New York tensions remained largely in repose. Within PPLC, however, efforts to enforce the earlier board of directors mandate upon the rebellious New Haven members continued to generate sparks, and only after being threatened with formal disaffiliation by the board did the New Haveners agree to surrender their presence at 406 Orange so that preparations toward opening a PPLC clinic after a Supreme Court victory could get underway.52

On February 11 Tom Emerson filed a ninety-six-page brief on behalf of Estelle Griswold and Lee Buxton with the Supreme Court. It was an impressive if not exhaustive piece of work, especially in light of the suddenness with which it had had to be prepared, and it offered two main arguments: first, that the 1879 law contravened the liberty protected by the Fourteenth Amendment, and, second, that its application to Griswold and Buxton also violated their First Amendment freedom of speech. Emerson subsumed the privacy argument into the liberty one. “The Connecticut statutes violate due process in that they constitute an unwarranted invasion of privacy. Whether one derives the right of privacy from a composite of the Third, Fourth and Fifth Amendments, from the Ninth Amendment, or from the ‘liberty’ clause of the Fourteenth Amendment, such a constitutional right has been specifically recognized by this Court. Although the boundaries of this constitutional right of privacy have not yet been spelled out, plainly the right extends to unwarranted government invasion of (1) the sanctity of the home, and (2) the intimacies of the sexual relationship in marriage. These core elements of the right to privacy are combined in this case.”

Emerson critically surveyed the possible legislative purposes which may have underlain the 1879 enactments, noted how widespread the acceptance of birth control now was within American society, and then returned to his argument that the First, Third, Fourth, and Fifth Amendments taken in tandem “embody a general principle which protects the private sector of life.” Additionally, “the interest of married spouses in the sanctity and privacy of their marital relations involves precisely the kind of right which the Ninth Amendment was intended to secure.” All told, Emerson concluded, “the demands of modern life require that the composite of these specific protections be accorded the status of a recognized constitutional right,” and reiterated again that “the sanctity of the home and the wholly personal nature of marital relations” together form “the inner core of the right of privacy.”⁵³

The four supportive amicus briefs were filed soon after Emerson’s, and were generally unremarkable. Pilpel and Wechsler, on behalf of PPFA, emphasized the extensive popular approval now accorded birth control, and Seymour’s brief for the doctors repeated well-known themes. Robert Fleming for the Catholic Council on Civil Liberties emphasized that the right of privacy was “within the liberty protected by the Fourteenth Amendment,” and the ACLU’s submission highlighted exactly the same point. Earlier Court decisions such as Meyer and Pierce recognized “marriage and the family as the ultimate repository of personal freedom,” and reaching beyond those previous holdings stood “the wife’s right to order her childbearing according to her financial and emotional needs, her abilities, and her achievements.”54

The amicus briefs, especially the Catholic one, drew a significant amount of press attention, and the attorneys on each side had a fairly good sense of where they stood. Joe Clark replied to one law student’s inquiry by remarking that “I have the good fortune, or lack thereof, to be” arguing Griswold for the state, while Tom Emerson expressed considerable optimism in response to the persnickety Morris Ernst. Harriet Pilpel notified Emerson that she was asking the Court for thirty minutes of oral argument time for herself in addition to the one hour each that both Emerson and Clark would have, although she acknowledged that the chances of the Court granting her request were “virtually nil.”⁵⁵

On March 11 Joe Clark submitted his brief in defense of the 1879 statute, a thirty-four-page effort that attempted to find a variety of procedural flaws in the case while also asserting that “There has been no invasion of anyone’s privacy in this case.” Although it was not apposite, Clark also volunteered that any suggestion “that single people should be allowed to use a contraceptive device is so contra to American experience, thought, and family law that it does not merit further discussion.” Five days after Clark’s filing, the clerk’s office informed all parties that the oral argument of Griswold v. Connecticut would commence on March 29 and that Pilpel’s request to participate had been denied.⁵⁶

At the same time that Griswold was moving forward toward argument before the Supreme Court, new efforts to change the old anticontraception statutes were underway in both Massachusetts and Connecticut. The Bay State attempt had started with a reform bill introduced by state Representative Michael S. Dukakis, but what drew sudden and extensive nationwide attention was a statement read on behalf of the hospitalized Richard Cardinal Cushing at a March 2 legislative hearing on the measure. “It does not seem reasonable to me to forbid in civil law a practice that can be considered a matter of private morality,” Cushing declared. He went on to say that “Catholics do not need the support of civil law to be faithful to their own religious convictions and they do not seek to impose by law their moral values on other members of society.” His “admirable” testimony drew prominent national editorial praise as “sensible, tolerant and thoroughly commendable,” and with Cushing’s encouragement the Dukakis bill was referred to a study commission for further action.57

In Connecticut, where reapportionment litigation had led to the cancellation of 1964 legislative elections and a second, 1965 session for the same legislators who had served in 1963, Katherine Evarts again introduced a repeal bill. Several days before the March 23 hearing, Joseph P. Cooney announced on behalf of the Hartford Archdiocese that no opponents would appear at the session in light of Griswold’s presence before the U.S. Supreme Court, and the most notable event at the very brief public session was the affirmative remarks that were volunteered by a female Roman Catholic Republican legislator from Stonington. Evarts’s bill was expected to win a favorable report from the Public Health and Safety Committee, but no one was anticipating that the state senate would move to vote on the measure just weeks before the U.S. Supreme Court might well erase the problem once and for all.⁵⁸

In the judgment of many of the young clerks, and perhaps several of the justices, the 1964–1965 Supreme Court term had seemed relatively uneventful. To at least several clerks, the major case of the year was Estes v. Texas, in which the Court finally decided that the presence of television cameras in a courtroom infringed upon a criminal defendant’s right to a fair trial, although others attached greater significance to Dombrowski v. Pfister, where the Court approved federal judicial intervention in an ongoing state criminal proceeding. Early in the term a significant number of clerks had been taken away from regular duties to proofread the final draft of Warren Commission Report on the assassination of President John F. Kennedy, and another, with his justice’s permission, had been recruited into full-time work for President Lyndon B. Johnson’s reelection campaign. John Harlan thought the Warren Commission involvement was an undeniable violation of the separation of powers, but one clerk who took part in the work explained that the most extensive attention was directed largely toward the girlie photos from Jack Ruby’s nightclub.

Many clerks were puzzled by the highly critical attitude that William O. Douglas was displaying toward the Court’s newest member, Justice Arthur Goldberg. Several also looked up to the other Kennedy appointee, Byron R. White, because of his status as the first former clerk to become a justice, but some were highly aggravated by White’s behavior as an exceptionally dirty basketball player during pickup games in the Court gym.

Among the clerks themselves, Warren’s John Hart Ely was the subject of more intramural talk than most, in part because of the perception that Ely in one otherwise unremarkable case, Hanna v. Plumer, had successfully persuaded the Chief to adopt a viewpoint that Ely himself had focused upon while still a student at Yale Law School. But Griswold v. Connecticut was undeniably of special interest to Ely, and several weeks in advance of oral argument he gave Warren a thirty page memorandum on the case. The six briefs, Ely explained, were on the whole somewhat disappointing. Emerson’s failed to offer any extensive argument as to whether the Connecticut statute might be vulnerable under the Fourteenth Amendment’s equal protection clause, “which to me seems very important,” and the amicus ones “really raise no arguments different from those” made by Emerson. More regrettably, Joe Clark’s brief “unfortunately does not put forth as good a defense of the law as can be made.” Although one of Clark’s procedural contentions might have some validity, “One would hope that the case for the State would be argued by someone other than the man responsible for the brief, but it appears that you will not be so lucky.”

On balance, Ely recommended, “I think the conviction should be reversed, but that the Court should carefully choose its ground of decision, for some of those urged by appellants have dangerous implications.” First and foremost among those was the notion that there is a constitutional right to privacy. “I do not think,” Ely opined, that “the Court should enforce clauses which are not there. No matter how strong a dislike for a piece of legislation may be, it is dangerous precedent to read into the Constitution guarantees which are not there.” No matter how many writers, or justices, might pontificate about a “right to be let alone,” “the Constitution says nothing about such a right.” Regarding Emerson’s contention that four or five different amendments all speak to such a right, Ely argued that “it by no means follows that because several parts of the Constitution protect aspects of what might be called privacy, the Constitution therefore contains a general right of privacy, with a content over and above the content of the various specific provisions. To say that the 9th Amendment protects privacy, without any demonstration of such a right predating the adoption of the Amendment, or any intention to cover privacy, is of course to beg the question.”

Ely went on to draw a special bead on one of Emerson’s principal linchpins. “Harlan’s opinion in Poe boils down to a statement that he does not like the Conn[ecticut] law. This vague, ‘outrage’ approach to the 14th Amendment comprises, in my opinion, the most dangerous sort of ‘activism.’” Instead, Ely suggested, the Chief Justice should look at Griswold, and how the Connecticut statute prevented the operation of birth control clinics for the poor, but not the provision of similar services to better-off patients of private physicians, in the light of an eighty-year-old equal protection decision, Yick Wo v. Hopkins. There, in 1886, the Supreme Court had declared that “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” In conclusion, Ely thus recommended that “an opinion along these lines would be far more satisfactory than one based on the right to privacy.”59

Estelle, Lee Buxton, Cornelia Jahncke, and Lucia and Charles Parks were among more than a dozen PPLCers who flew to Washington for the March 29 oral argument. Miriam Harper and Ruth Emerson also attended, as did Katie Roraback, who joined Tom Emerson at the counsel’s table in the front of the courtroom. Reporters noted that the capacity crowd also included Ethel Kennedy, the wife of the former attorney general and newly elected senator from New York, as well as Treasury Secretary Henry Fowler. Consideration of Griswold began at about one thirty in the afternoon, and Tom was no more than a minute into his opening remarks when he was interrupted by the first of many questions from the bench. Tom explained that their challenge to the 1879 statute “goes only to the application to married women,” and Justice Hugo Black broke in: “Well, why wouldn’t it be a denial of equal protection of the laws to draw such a distinction, if women need that?” “Well, it might be,” Emerson conceded. Then, responding to another query, he repeated the error Fowler Harper had made four years earlier by telling the court that under the statute “there have been no prosecutions for sale.” Justice Brennan, picking up on Black’s question, asked Emerson why he was not making an equal protection argument, “which on the face of it, it seems to me, might have considerable merit.” Tom parried by saying that that claim was subsumed under their due process clause challenge, and after Black again jumped in, Tom reiterated his point: “We pitch it on due process in the basic sense” that the statute “is arbitrary and unreasonable, and in the special sense that it constitutes a deprivation of right against invasion of privacy. The privacy argument is a substantially narrower one than the general argument.” Emerson said he also was making a First Amendment claim, and added that “We argued the Ninth Amendment as part of the privacy … we refer to that as a basis for the right of privacy.”

Hugo Black, in little doubt of where Emerson’s argument would take the Court, came back once again, asking Tom whether he expected the justices to find the statute “sufficiently shocking” as to be void under the due process clause—a symbolic standard against which Black had railed for many years. Tom immediately denied that he was asking the Court to return to substantive due process as it had been employed in the early twentieth century: “we are not asking this Court to revive Lochner,” the most infamous such holding. But Black fought back. “It sounds to me like you’re asking us to follow the constitutional philosophy of that case.” Tom again denied it. “No, your honor, we are not. We are asking you to follow the philosophy of Meyer against Nebraska and Pierce against the Society of Sisters.” Black suggested that Emerson was thus making an argument that the Connecticut statute was overbroad, and Tom agreed: “The reason that it is overbroad is because it denies rights to married couples that should not be denied.” Black then asked what in addition to the due process clause was Tom resting his constitutional claim upon. “We rely on the Third, Fourth and Fifth Amendments, insofar as they embody a concept of a right of privacy” and were incorporated to apply against the states by the Fourteenth. Justice Goldberg inquired as to whether Emerson was saying that privacy, with regard to the Ninth Amendment, was “a right retained by the people,” and after first responding “It could very well be,” Tom caught himself and sounded a much stronger note. “If there’s any right that you would think would be reserved to the people and which the government should not interfere with, it would be this right.” Potter Stewart somewhat oddly inquired as to whether Emerson had any data “as to the breadth of the use of these devices” back in 1791 when the Ninth Amendment was adopted, and Tom simply said no.

John Harlan spoke up to ask whether Emerson would be coming back to amplify his First Amendment argument. Tom self-effacingly responded, “Well, I’m not getting far on any of my arguments,” and the courtroom rang with laughter. Then Tom explained how “It’s a religious principle that’s being enacted into law, that it is immoral to use contraceptives even within the marriage relation.” Otherwise, “there is no objective basis for the statutes.” Then, in order to preserve the final ten minutes of his time for rebuttal the following day, Tom concluded by again emphasizing “the right to decide whether to have children voluntarily.”60

Connecticut journalists had anticipated that the Washington face-off would be a less than even match. One New Haven paper, predicting that Griswold and Buxton “will win overwhelmingly,” had emphasized that Joe Clark was “a young man in his early thirties with no experience before the Supreme Court.” A graduate of Notre Dame University and the University of Connecticut Law School, Clark had been in private practice in New Haven for four years before being named to the part-time assistant prosecutor post in 1961. A New Haven native whose father had been extremely active in state and local Democratic party politics, Clark was active in the Knights of Columbus and the St. Joseph Holy Name Society and would eventually have six children.

Clark had no illusions about his chances with the Supreme Court. Acknowledging that the 1879 statute was “a very difficult thing to defend,” he had concluded that “the handwriting was clearly on the wall” back in December when the Court had taken the appeal and thereby rejected his motion to dismiss. Personally he though that the Connecticut law was “foolish” but not unconstitutional; “legislatures have the right to enact stupid laws.” Julius Maretz, Irwin Harrison, and several other attorney friends had accompanied Clark to Washington, and his portion of the Griswold argument began just a few minutes before the Court’s scheduled adjournment for the day at two thirty p.m. He started by trying to use the Supreme Court’s own history with birth control cases to his advantage: “Actually, the issue that this Court is being asked to decide is not a new issue here. It is: Should the case of State versus Sanger from New York, and should the case of State versus Gardner from Massachusetts, decisions of this Court, be overturned? In both those cases, this Court was involved with a situation where clinics were being run.… And in both cases, this Court held that this was not a federal question.” Clark also had time to volunteer that there had indeed been convictions for selling contraceptive articles before the two-thirty adjournment was upon him.

When the oral argument resumed on Tuesday morning shortly after ten a.m., Potter Stewart immediately asked Clark what the purpose was of the 1879 statute. “I think it’s to reduce the chances of immorality,” Clark responded, “to act as a deterrent to sexual intercourse outside of the marital relationship.” Stewart, joined by Arthur Goldberg, pressed him further, noting that all the women involved in Griswold were married. Clark replied that “there are other methods available to married people” besides contraception, and volunteered that legislatively “this is a question of pure power,” supported by a desire “to preserve morality.” He went on to say that privacy had nothing to do with the facts of this case. The two defendants, he emphasized, “were running a clinic. They were holding themselves out to the world.”

Clark bore up extremely well under very persistent questioning. “This case is purely a case of legislative power reduced to its narrowest sense. Does the legislature have the power to enact laws in this area,” or does it not. “Married couples do not have the freedom to do what they want,” and the Supreme Court’s refusals to review Sanger and Gardner decades earlier demonstrated “that it was within the power of the states to control these contraceptive clinics.”

When Clark’s time expired, Tom Emerson rose for approximately ten minutes’ worth of rebuttal, beginning with the First Amendment speech argument he had not been able to get to on Monday. Hugo Black broke in with a different question: “Would your argument concerning these things you’ve been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?” Tom responded, “No, I think it would not cover the abortion laws or the sterilization laws, your honor. Those—that conduct does not occur in the privacy of the home.” Tom paused, and then reiterated the point. “The conduct that is being prohibited in the abortion cases takes place outside of the home, normally. There is no violation of the sanctity of the home.” Then Byron White interjected, “Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being, doesn’t it? Isn’t that a rather different problem from contraception?” Tom immediately agreed: “Oh yes, of course.” Black jumped back in: “Are you saying that all abortions involve killing or murder?” Tom hesitated. “Well, I don’t know whether you need characterize it that way. But it involves taking what has begun to be a life.” With that the argument concluded, and Griswold was submitted for decision.61

The private conference discussion of Griswold by the nine justices took place three days later, on Friday, April 2. Some of the justices, such as Harlan and Douglas, knew without a moment’s doubt how they felt about the case. But Earl Warren was highly uncertain, and in advance of the conference he looked over the long memo that John Ely had given him four weeks earlier, and sketched out his own reactions. First, “I would give the Legis[lature] a chance to dispose of it by waiting, if possible, to adjournment,” to see whether the 1965 Connecticut General Assembly might amend or repeal it. Second, Warren was certain of several things he could not do. “I cannot say that it affects the 1st Amend[ment] rights of doctors.” Additionally, “I cannot say the state has no legitimate interest—that would lead me to trouble on abortions.” Also, “I cannot balance the interest of the state against that of the individual,” and “I cannot use the substantive due process approach.” Likewise, “I do not believe the equal protection argument is sound,” and “I do not accept the privacy argument.” The Chief Justice realized that did not leave him with many other options, and Ely’s recommendation might be the best course: Warren could support voiding the law either “on a Yick Wo theory or on the basis that the statute is not tightly drawn.”

When the April 2 discussion of Griswold commenced, the Chief articulated to his colleagues most of the thoughts he had jotted down to himself. He was “bothered with the case,” and certainly held out some hope that the Connecticut legislature “may repeal the law.” He “can’t say it affects the First Amendment rights of doctors,” and “can’t say the state has no interest in the field,” for such a holding “could apply to abortion laws.” Warren further recited that he could not employ substantive due process or equal protection, and could not accept a privacy argument. Then he explained that he might rely upon Yick Wo since there was no effective prohibition on contraceptive sales in Connecticut and since prosecutors did not “go after doctors as such but only clinics.” He would favor an opinion saying that any statute regulating the practice of contraception had to be clearly, carefully, and narrowly drawn, since basic rights were involved—“we are dealing with a confidential association, the most intimate in our life.”

Hugo Black spoke next, and from the tenor of his questions to Emerson, none of his colleagues doubted where Black would come out, his apparent dissent in Poe notwithstanding. He could not vote to reverse on any ground, Black said, not on a First Amendment speech basis or on any freedom of association claim. The First Amendment right of association, Black explained, “is for me the right of assembly, and the right of husband and wife to assemble in bed is a new right of assembly to me.” He could not see why the statute was not within the state’s power to enact, and while he was open to being shown that the law might somehow be unconstitutionally vague, he was firmly opposed to any due process balancing analysis of the case.

William O. Douglas immediately challenged Black’s comments. The right of association is more than a right of assembly, Douglas explained; it is a right to join with and associate with others. A right to send a child to a nonpublic school, as in Pierce, was on the periphery of the First Amendment right to association, just as the Court had held that the right to travel also lay within the periphery of First Amendment protection. So too was this present right of association, for there was nothing more personal than this relationship, and even on the periphery it was within First Amendment protection.

Four years earlier Tom Clark, like Earl Warren, had joined the Frankfurter opinion in Poe, but now he firmly and succinctly agreed with Douglas. Alluding to Meyer and to Pierce, he said that there was a right to marry, to maintain a home, and to have children. This indeed was an area where people have the “right to be let alone.” Hugo Black interrupted him to assert that “a state can abolish marriage,” but Clark let the remark pass and reiterated his position—this was an area where people have the right to be let alone, and he preferred that principle as the grounds for reversing the Connecticut convictions.

The ageing John Harlan restated his position from Poe v. Ullman. He would reverse on the basis of Fourteenth Amendment due process liberty, but he noted that he would feel differently if the Connecticut law were not a ‘use’ statute and did not apply to married couples.

Next, Bill Brennan, who had been the decisive swing vote in Poe, briefly said that he agreed with the Chief, Clark, and Douglas, and favored reversal because of how the statute infringed upon the realm of privacy.

But Potter Stewart, who had clearly intimated in Poe that he shared Bill Douglas’s and John Harlan’s objections to the Connecticut statute, now said that he could not find anything in the Bill of Rights that touched upon this. Nothing in Amendments One, Three, Four, Five, Nine or in any others prohibited such a statute, and hence he would have to vote to affirm. The place to get relief from the 1879 statute, Stewart said, was in the Connecticut legislature.

The eighth justice to speak was Byron R. White. Nominated to the Court in 1962 to take the seat of the retiring Charles E. Whittaker, White was best known as a former college football star from the late 1930s rather than for his role in Kennedy’s presidential campaign and his one year as Deputy Attorney General. After service in World War II and graduation from Yale Law School, White had clerked for Chief Justice Fred M. Vinson and had then practiced law in Denver until being drawn into Kennedy’s Justice Department. He had been on the Court for less than three years at the time Griswold was argued, compiling an unremarkable and sometimes unpredictable voting record. On Griswold he told his colleagues simply that he too would vote to reverse.

The ninth and most junior justice was Arthur J. Goldberg, Kennedy’s Secretary of Labor until he was named to succeed the retiring Felix Frankfurter five months after White had replaced Whittaker. A 1929 graduate of Northwestern University Law School, Goldberg had had a highly distinguished career as a labor lawyer before taking the post in Kennedy’s cabinet. While White in his two years plus had become best known within the Court for his rough approach to basketball, Goldberg had quickly emerged as an intellectually active and effervescent justice who had developed especially good relationships with Brennan, Warren, and Harlan.

On Griswold, Goldberg said that he too favored reversal, relying on Meyer and Pierce. Connecticut had no compelling interest that justified the 1879 statute, and the law clearly infringed upon associational rights as protected by the First Amendment. Two fairly recent cases involving penalties imposed upon former or present Communist Party members, Schware v. Board of Bar Examiners and Aptheker v. Secretary of State, had involved parallel concerns, Goldberg said, and if one had the right to join a political organization then one “can join his wife and live with her as he likes.”

At the end of that discussion, the tally on Griswold was clear and straightforward: seven votes for reversing the convictions and two principled votes—Black and Stewart—against any reversal. The following Monday morning Earl Warren circulated the assignment list for new opinions, and to the dismay of at least one or two chambers, Griswold v. Connecticut was assigned to William O. Douglas.62

The assignment to Douglas was most distressing to John Harlan. Now largely blind, he had perhaps less of a relationship to Earl Warren than he did with any of his other colleagues. Increasingly viewed as the Court’s most prominent conservative voice following the retirement of Felix Frankfurter, Harlan nonetheless still felt strongly about his Poe dissent and rightfully appreciated the stature the opinion had won for itself. But from Earl Warren’s vantage point, assigning Griswold to John Harlan would only have created doctrinal trouble, for Harlan’s Fourteenth Amendment due process “liberty” orientation was, at least in form if not in substance, wholly unacceptable to at least two members of the prospective seven-vote majority: Warren himself as well as Bill Douglas. Warren knew full well that the often-cavalier Douglas was nowhere near the careful judicial craftsman that John Harlan still was, and Douglas’s behavior as the court’s quintessential loner meant that he would make no special efforts to prepare an opinion that would generate consensus among all seven prospective majority votes, but Douglas’s remarks at conference had been far closer to the nascent doctrinal center of that majority than had John Harlan’s.

The Griswold assignment opened Douglas to some risqué kidding from one colleague who shared his taste for off-color humor, Byron White. Appreciating that the challenge in preparing an opinion would be to persuasively articulate how one or another accepted constitutional doctrine applied to the Connecticut statute, White sent Douglas a teasing note recommending four possibilities and suggesting that “any one of the following dispositions would be wholly justified.” Number one, White scrawled, would be a Fourth Amendment search and seizure holding, “because the Conn[ecticut] law would authorize a search for the intra-uterine coil.” Number two, there was “Escobedo [v. Illinois] and the right to counsel—from a Dr.” Or, thirdly, one could apply Robinson v. California, a 1962 decision which had held that someone could not be criminally punished for the status of being a drug addict, to the Connecticut situation “since there is an obvious addiction to sex involved & it is cruel & unusual punishment to deprive one of it or to permit it only at the cost of having children. A grizzly choice.” Lastly, there was a possibility that Tom Clark already had jokingly suggested to Douglas, building on the landmark 1964 reapportionment case of Reynolds v. Sims, in which the Court had adopted the memorable slogan of “one man, one vote.” Now it could simply be altered and expanded a bit, Clark and White said: “one man, one child.” Douglas laughingly indicated that he preferred the last of the four possibilities, sending a note back to Clark that “I think your ‘one man one child’ formula is a flash of genius.” Clark responded that it ought to be patentable pursuant to another recent decision.63

While the Court was snickering over Griswold’s implications, the parties took stock of their prospects in the wake of the difficult oral argument. Joe Clark remained less than sanguine about his chances despite having been quite pleased with the hearing, while Tom Emerson was both very hopeful and perceptively astute about the likely implications of different justices’ questions. “I am fairly optimistic that the Court will go with us on the case,” he wrote to one old friend the same day that the justices were holding their private conference. “Black was very strongly opposed; he just will not go for substantive due process of any kind, and he thinks that a right of privacy argument is nothing but natural law and the work of the devil. Warren also seemed a little uncertain. But I think we have the other seven with us, or at least five of them. They never let me give my argument, but kept up a running barrage of questions throughout the whole time. The result was that I felt rather frustrated, though not unhappy.”

Tom took a distinctly more confident stance with his two clients. He told Lee Buxton that “I would be quite amazed if the Court went against us,” and he said to Estelle that he remained “very optimistic.” In fact, “I would be much surprised if we didn’t win by seven to two,” although he cautioned her that it was unlikely that the Court would issue a decision until mid-June.⁶⁴

William O. Douglas, however, was a fast if not thoughtful writer, and within ten days of being assigned Griswold he had scrawled out the first draft of an opinion in blue ink on a yellow legal pad. Typed up double-space it came to only six pages, but this was not atypical for a Douglas opinion, for as one former Douglas clerk wrote years later, with little if any overstatement, “Many were drafted in twenty minutes. Some were written on the bench during oral argument” of other cases, since Douglas rarely asked questions. Douglas’s sole clerk during the 1964–1965 year, Stanford Law School graduate James Campbell, had already learned that Douglas had no interest in having a clerk help him in any significant way with his majority opinions. While Douglas was more than happy to have a clerk prepare drafts of dissenting opinions, when it came to a case such as Griswold, “he wouldn’t let me near this.”

Douglas’s initial draft in Griswold may have taken more than twenty minutes, but not much. After giving a brief rendition of the basic facts, he immediately disclaimed any reliance on Fourteenth Amendment due process clause liberty: “Overtones of some arguments suggest that Lochner … should be our guide. But we decline that invitation.… We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. Were this law one that dealt with the sale or marketing of contraceptives we would think no substantial federal question would be presented by this appeal. This case, however, has no commercial aspect or any marketing aspect. It deals with an intimate relation of husband and wife.”

“The association of husband and wife is not mentioned in the Constitution nor in the Bill of Rights,” Douglas acknowledged. But decisions such as Meyer and Pierce had construed the First Amendment to include certain “peripheral rights,” particularly in the realm of political associations, as highlighted in several cases protecting members of the National Association for the Advancement of Colored People (NAACP) from state harassment. “Marriage does not fit precisely any of the categories of First Amendment rights. But it is a form of association as vital in the life of a man or woman as any other, and perhaps more so. We would, indeed, have difficulty protecting the intimacies of one’s relations to the NAACP and not the intimacies of one’s marriage relation. Marriage is the essence of one form of the expression of love, admiration, and loyalty.”

Then Douglas reached for a rhetorical climax. “We deal with a right of association as old as the Bill of Rights, older than our political parties, older than our school system. It is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. This association promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”

Douglas concluded the little opinion by sounding a different note: “The prospects of police with warrants searching the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives is repulsive to the idea of privacy and of association that make up a goodly part of the penumbra of the Constitution and Bill of Rights.”65

Douglas’s clerk Jim Campbell suggested two modest additions to the draft opinion, one concerning privacy and both drawn in part from Douglas’s far lengthier dissent in Poe, before it went to the Court’s print shop for typesetting. Once that was done, Douglas privately sent a copy of it only to Bill Brennan, and in the Brennan chambers the reaction to Douglas’s handiwork was not enthusiastic. Brennan himself was beginning to believe, as he explained publicly years later, that Bill Douglas was fast losing interest in the work of the Court. Undeniably as bright or brighter than anyone else on the Court, Douglas’s disinterest and carelessness stemmed not from lack of ability but from lack of commitment. Even those who saw the most of Douglas during the 1964–1965 term wondered on occasion whether he was “mentally absent,” and the Griswold draft that Brennan and Brennan’s clerk Paul Posner reviewed certainly seemed like evidence of such.

Posner, a hard-driving Harvard Law School graduate, sat down and drafted a long letter for Brennan to send Douglas suggesting extensive revisions in the initial draft. Deferential yet insistent in tone, it began by saying that “while I agree with a great deal” of Douglas’s draft, “I should like to suggest a substantial change in emphasis.” Douglas was “absolutely right” to reject Lochner-style substantive due process, and also correct in identifying the absence of any explicit protection for marriage in the Bill of Rights as “the obstacle we must hurdle.” “But I hesitate,” it went on,

to bring the husband-wife relationship within the right to association we have constructed in the First Amendment context. Any language to the effect that the family unit is a sacred unit, that it is unreachable by the State … may come back to haunt us just as Lochner did. If a suitable formulation can be worked out, I would prefer a theory based on privacy, which, as you point out, is the real interest vindicated here. In the First Amendment context, in situations like NAACP v. Alabama, privacy is necessary to protect the capacity of an association for fruitful advocacy. In the present context, it seems to me that we are really interested in the privacy of married couples quite apart from any interest in advocacy.… we have to strain hard to find a First Amendment interest in advocacy or expression in the marital relationship, where that is not really the primary interest.

Then Posner’s draft of the Brennan letter to Douglas articulated the affirmative case for a different approach:

Instead of expanding the First Amendment right of association to include marriage, why not say that what has been done for the First Amendment can also be done for some of the other fundamental guarantees of the Bill of Rights? In other words, where fundamentals are concerned, the Bill of Rights guarantees are but expressions or examples of those rights, and do not preclude applications or extensions of those rights to situations unanticipated by the Framers. Whether, in doing for other guarantees what has been done for speech and assembly in the First Amendment, we proceed by an expansive interpretation of those guarantees or by application of the Ninth Amendment admonition that the enumeration of rights is not exhaustive, the result is the same. The guarantees of the Bill of Rights do not necessarily resist expansion to fill in the edges where the same fundamental interests are at stake.

Thus the Connecticut statutes violated the right to privacy “created out of the Fourth Amendment and the Fifth, together with the Third, in much the same way as the right to association has been created out of the First. Taken together, those amendments indicate a fundamental concern with the sanctity of the home and the right of the individual to be let alone. We need not say how far it would extend, nor intimate even remotely whether it would encompass ‘privacy’ in the common law sense” of “invasion of privacy” as an issue in tort law. “All that is necessary for the decision of this case is the recognition that, whatever the contours of a constitutional right to privacy, it would preclude application of the statute before us to married couples. For it is plain that, in our civilization, the marital relationship above all else is endowed with privacy.”

Justice Brennan reviewed Posner’s draft of the letter with pencil in hand and made just a handful of modest alterations, adding a few further touches of deference and inserting a specific mention of “the self-incrimination clause of the” Fifth Amendment where Posner had referred to that amendment. He changed and expanded the concluding sentence so that it highlighted one additional advantage of his newly suggested approach: “I think there is a better chance that it will command a court.” With that, a properly retyped copy of the letter was signed and sent on to Justice Douglas.66

Douglas took Brennan’s suggestions very much to heart, and when he privately sent a significantly revised version of the draft to both Brennan and Earl Warren three days later on April 27, Brennan and Posner at least were deeply pleased at the extent to which they had helped provoke a notable improvement. “This is a signal victory,” Posner wrote in a cover note to Brennan. “The approach is, I think substantially in accord with your note of April 24,” particularly with regard to how a principal emphasis on privacy had replaced the previous focus on a right of association. There were additional specific suggestions that could be made, particularly with regard to seeking greater specificity in Douglas’s mention of how there were “penumbras” and “emanations” in the Bill of Rights, and with “beefing up” Douglas’s reference to the Ninth Amendment. “As a tactical matter, he might want to specify the Ninth Amendment as an alternative, without saying whether he specifically relies upon it.” Perhaps Brennan might want to have a conversation with Douglas about these points, in the context of “getting a Court,” before the draft opinion was circulated to all chambers within the next day or so, but the major battle appeared to have been won.67

One reader of that revised April 27 circulation who was not pleased, however, was John Hart Ely in the Chief Justice’s chambers, and he immediately gave Warren a five-page cover memo advising that “I do not think you should join this opinion.” Ely said that “I agree with you that the Constitution says nothing about privacy,” and that nothing in the Connecticut statute intruded upon any privacy concept unless Douglas’s hypothesized police searches of bedrooms did come to pass. “When one seizes upon a right which does not appear in the Constitution, that right can be given whatever shape and scope the person discussing it wishes it to have.” Even more strongly than at the outset, Ely again warned that “this opinion incorporates an approach to the Constitution so dangerous that you should not join it.” Either Warren could “wait and see what is written” by other justices, for “perhaps someone will circulate an opinion you can join.” However, “If no acceptable concurrence appears, I do not think it would be much trouble for us to write a brief concurrence” saying that the “Connecticut law is void under Yick Wo” because “it is only against the clinics that the law is enforced,” if Warren wanted to do so.⁶⁸

On April 28 a largely unchanged text of the Douglas opinion was circulated for the first time to the other six chambers. Tom Clark told Douglas almost immediately that he liked it, particularly the rhetorical peroration, and later in the day sent a follow-up note: “Yes, I like all of it—it emancipates femininity and protects masculinity.” The following day Arthur Goldberg sent Douglas an almost equally enthusiastic note, saying “I am very glad to join your fine opinion” and offering just two minor suggestions for improvements in wording. John Harlan also sent Douglas an acknowledgment, asking him to indicate in a separate line at the bottom of the opinion that Harlan concurred in the judgment of reversal on the grounds of his Poe dissent. “As I told you on the Bench, I may decide to write something in addition, but I have not yet made up my mind.” Lastly, Potter Stewart sent a note to all of his colleagues saying that “In due course I expect to circulate a dissenting opinion.”

Those initial responses seemed to give Douglas four votes—his own, Brennan’s, Clark’s, and Goldberg’s—but only four votes, for what was supposed to be a majority opinion. Neither Warren nor White had signaled a response, and while Harlan was a fifth vote for the outcome, he had made it clear that he was not considering formally joining the Douglas opinion. Much of the justices’ and clerks’ attention necessarily shifted to other cases as the Court’s workload built toward the final six weeks of the term, but within the world of the clerks, Douglas’s Jim Campbell got more than a small amount of teasing about the revised draft that had been circulated to everyone on April 28. The Griswold opinion was “very badly received,” Campbell recalled years later, and “attracted considerable scorn in other chambers,” such as the Chief Justice’s, where another of the clerks was a Campbell classmate from Stanford. “We felt bad for Jim,” one clerk explained, because it was common knowledge within the Court that Douglas rarely allowed any clerk to have significant input into his principal opinions. One clerk in Goldberg’s chambers had been “shocked” by what a “very weak opinion” the Douglas circulation was, and in breakfast and lunchroom chatter it was clear that many other clerks had had a similar reaction. “No one who read it liked it,” Campbell remembered, and in particular Douglas’s references to “emanations” and “penumbras” “attracted the giggles” of other clerks.69

As something of an implicit consensus emerged that the Douglas opinion “was not adequate to the task,” the two focal points of attention became the Warren and Goldberg chambers. Potter Stewart, as promised, circulated in early May a draft of a small dissent reiterating his conference comments that no provision of the Constitution barred the Connecticut law, but the real question of whether there would be a fifth vote for the Douglas opinion, or any majority opinion, focused upon Earl Warren and his reluctance, with or without John Ely’s urgings, to join the Douglas opinion.

At some point in very early May Warren discussed his doubts with Arthur Goldberg, who privately had been toying with the possibility of saying something more about the Ninth Amendment angle that had been raised in Harper’s jurisdictional statement, that Goldberg himself had brought up to Tom Emerson at oral argument, and that Douglas had made a passing reference to in his draft opinion. Warren’s expressions of disquiet were enough, at least as Goldberg later remembered the sequence, to propel him into action, and right after that conversation Goldberg walked into the room shared by his two clerks, Stephen Breyer and Stephen Goldstein, and told them that they had a new assignment: “I have a good idea. We’re going to do something on the Ninth Amendment.” Breyer was designated to undertake the appropriate research and preliminary drafting, and on May 14 an initial version of a Goldberg concurrence that was twice as long as Douglas’s ostensible majority opinion was circulated to all chambers. In a cover note to Douglas, Goldberg said simply that “I have added some of my views about the 9th Amendment, which, as I recall the Conference discussion, you are not free to do as reflecting the views of all in the majority.”70

Goldberg did not view his circulation as a competing alternative to the Douglas opinion, which he already had joined, and Goldberg, who could be quite an intra-Court lobbyist when he chose to, did not actively try to recruit additional supporters for his concurrence. Three days after it was distributed, Bill Brennan formally joined it, and even the critically minded John Hart Ely told Chief Justice Warren that “I think this is a good opinion.” Its articulation and advocacy of the Ninth Amendment’s declaration that the enumeration of “certain rights” in the Constitution “shall not be construed to deny or disparage others retained by the people” was an especially welcome rebuttal to Stewart’s contention “that the enumeration of certain rights should be construed to disparage others.” But, Ely warned Warren, Goldberg just like Douglas “is disturbingly unclear as to the dimensions of the right which is being recognized. All we are told is that it has something to do with marital privacy.” He again intimated that the Chief might want to consider a concurrence of his own, but Warren did not move either to join Goldberg or to give Ely a go-ahead of his own.

Five days after Goldberg’s circulation, Byron White, the so far silent seventh member of the Griswold majority, distributed a six-page concurrence of his own. Jim Campbell told Justice Douglas that “I am not sure he is saying anything other than what you have said,” and wondered if White might be open to joining Douglas if a modest change or two were made. John Ely, however, was quite impressed by how White, unlike either Douglas or Goldberg, avoided any express recognition of a privacy right in nonetheless finding that the Connecticut statute violated due process, and told Earl Warren that “I think this is the best opinion which has yet been circulated in this case.” White almost certainly would be willing to add the sort of Yick Wo discussion and citation that Ely and Warren had both focused on, and the very next day the Chief Justice formally joined the White concurrence.71

While the Supreme Court was privately wrestling with Griswold, PPLC was slowly proceeding with plans to open a clinic once a decision against the 1879 statute was indeed handed down. Estelle and others hoped such an opening could take place within a week or two of such a ruling, but the ongoing low-grade warfare between the PPLC board and the New Haven group had slowed such preparations. In early May the 1965 legislative repeal bill had been sent to the house floor with a favorable committee report, and on May 18 it had been passed by an impressive margin of 130 to 47. One last-ditch opponent warned his colleagues that since he was one of seventeen children, “If Connecticut had had birth control, I might not have been here,” but his admonition failed to generate any alarm. In the state senate, however, no action was taken on the measure, as legislative leaders preferred simply to wait another three or four weeks for the Supreme Court to end the dispute once and for all.⁷²

Within the Court, the apparent muddle as to whether there would or would not be an actual majority opinion to accompany the majority vote against Griswold and Buxton’s convictions and the 1879 statute remained a subject of relatively low-key concern. On May 21 Hugo Black circulated a relatively brief dissent that he himself had first written out in pencil a week earlier, and the next day Potter Stewart formally joined it, followed in turn by Black then formally joining Stewart’s similar, previously circulated dissent. That same week the Court handed down a decision in Lamont v. Postmaster General, a First Amendment case that afforded constitutional protection to the right to receive publications, and a Brennan concurrence, joined only by Goldberg, contained one assertion quite parallel to the sort of language that they and Douglas had been preparing for Griswold: “the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.”

By Friday, May 28, William O. Douglas had resigned himself to the fact that his opinion in Griswold was unlikely to garner a majority of the Court. The seven votes for voiding the two convictions remained firm, but only four of those stood behind Douglas’s opinion. Byron White’s concurrence had his vote plus Earl Warren’s, and John Harlan’s separate statement simply concurred in the judgment. Jim Campbell asked Douglas whether he wanted to strengthen his privacy language by adding a discussion of Justice Louis Brandeis’s well-known articulation of the “right to be let alone” in a 1928 dissent in a wiretapping case, Olmstead v. United States, but Douglas let the suggestion pass unheeded. Campbell also recognized that there of course remained some chance that the Chief Justice would either switch from the White concurrence to Douglas’s opinion, or join the latter as well, thus reelevating the Douglas statement to majority stature, but Griswold was only one of a good number of cases on the Court’s plate as the term headed into its final two weeks.

On Wednesday, June 2, John Harlan distributed a brief page-and-a-half concurrence in place of his previous pro forma statement that he would concur in the judgment. Then, as a result of an unrecorded conference discussion or individual conversation on Friday, June 4, Earl Warren did just what Campbell had been hoping for, but in a way that Campbell’s scenario had not envisioned: Warren did indeed remove his name from Byron White’s separate concurrence, but rather than directly join the Douglas opinion, he instead joined Brennan and Goldberg on the latter’s concurrence. Since the Goldberg opinion expressly indicated that the justices for whom it spoke also joined Douglas, Warren’s action created a five-vote majority for the Douglas opinion—and the clear impression that Warren indeed supported it—without the Chief Justice having to join Douglas’s handiwork directly. From the outside it was a distinction without a difference, but given how long and hard the Chief had wrestled with the constitutional implications of Griswold ever since John Ely’s first lengthy memo on the case more than six months earlier, it was a distinction that doubtless made Earl Warren feel somewhat more comfortable about signing on to so potentially open-ended a decision. By the end of that Friday the Court’s juggling of Griswold was complete, and final revisions of the six different opinions in the case were sent to the print shop.73

Monday morning, June 7, the Supreme Court publicly handed down its 7 to 2 decision reversing Estelle Griswold and Lee Buxton’s convictions and holding Connecticut’s 1879 anticontraception statute unconstitutional. The final version of William O. Douglas’s opinion for the Court covered less than seven pages. It repeated his original language declining any invitation that Lochner should be the Court’s guide, and denying that the Court would function as any sort of “super-legislature” determining the wisdom of legislative enactments. It moved on to his original discussion of a right of association, relying upon Meyer, Pierce, and NAACP v. Alabama, the latter of which had expressly protected the privacy of one’s political association memberships. “In other words,” Douglas said, “the First Amendment has a penumbra where privacy is protected from governmental intrusion.” He cited several other cases, including Schware, the bar admissions case that Goldberg had mentioned in the conference discussion, and then enlarged upon his First Amendment point: “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance,” citing his own dissent in Poe as support. “Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment” was one, and the Third, Fourth, and Fifth Amendments similarly each protected another “facet” or “zone” of privacy.

Douglas then simply quoted the Ninth Amendment, without any explanatory comment, before returning to additional citations of Fourth and Fifth Amendment precedents and two law review articles. His two closing paragraphs emphasized how Griswold “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” and involved a statute which, in its “use” provision, “seeks to achieve its goals by means having a maximum destructive impact upon that relationship.” He then employed in revised form the language from his original draft rhetorically asking would not police searches of “the sacred precincts of marital bedrooms” be “repulsive to the notions of privacy surrounding the marriage relationship.” Douglas’s final paragraph was the paean to the importance of marriage that had appeared in his initial version, except that the original assertion that “We deal with a right of association as old as the Bill of Rights” had been revised to say that “We deal with a right of privacy older than the Bill of Rights.”

The Goldberg concurrence, endorsed by both Warren and Brennan, was twice the length of the Douglas opinion. With regard to Fourteenth Amendment due process, it acknowledged that “the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.” The liberty concept “embraces the right of marital privacy” even though the latter was not explicitly mentioned in the Constitution, a conclusion that was supported both by judicial precedents and by the language of the Ninth Amendment. He highlighted his desire “to emphasize the relevance” of the Ninth Amendment to that holding, and stressed that “the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned” in the Bill of Rights.

Goldberg then devoted several pages to surveying the comments of the Ninth Amendment’s principal author, James Madison, and an authoritative nineteenth century commentator, Supreme Court Justice Joseph Story, before reiterating his basic contention, one that directly contradicted the arguments put forward by dissenting Justices Black and Stewart: “To hold that a right so basic and fundamental and so deep-rooted in our society as the right to privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.”

The significance of the Ninth Amendment for constitutional interpretation, Goldberg asserted, lay in its “strong support” of the view that due process “liberty” was an inclusive and open-ended phrase. He quoted from both Douglas’s and Harlan’s dissents in Poe, and at some length from Brandeis’s poetic articulation of the right to be let alone in Olmstead. “The entire fabric of the Constitution,” Goldberg declared, demonstrated that “the rights to marital privacy and to marry and raise a family” were just as fundamental as any that were explicitly enumerated in the document. The Court’s reaching this conclusion, he noted in closing, “in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct.” He quoted Harlan’s language in Poe disavowing any shielding of adultery or homosexuality, and concluded that “the right of privacy in the marital relation is fundamental and basic—a personal right ‘retained by the people’ within the meaning of the Ninth Amendment.”74

John Harlan’s three-page concurrence was a restatement of his long-held belief, articulated so powerfully and persuasively in Poe, that the Fourteenth Amendment’s due process clause protection of “liberty” represented a substantial limitation on state action wholly independent of the specific constitutional guarantees spelled out in Amendments One through Eight. He took issue with Hugo Black’s judicial literalism, and emphasized that “the teachings of history” and appreciation of “the basic values that underlie our society” were the best guides for defining and applying the Constitution’s guarantee of personal liberty.

Byron White’s individual concurrence also stressed the independent definition and application of Fourteenth Amendment due process clause liberty. He devoted several pages to attempting to plumb the legislative purpose underlying the Connecticut law, made the Yick Wo point that Ely and Warren had urged about the apparent history of enforcement only against clinics, and concluded with a discussion of how the statute’s impact on married couples vastly exceeded any possible deterrent effect the law might have with regard to illicit sex.

Hugo Black’s twenty-page dissent, by far the longest of the six opinions in the case, began with a forthright admission that “the law is every bit as offensive to me as it is to my Brethren of the majority.” He criticized “privacy” as a “broad, abstract and ambiguous concept which can easily be shrunken in meaning” as well as expanded, and then volunteered in a memorable line that “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” Whether one employed the due process liberty approach of Harlan and White, or the Ninth Amendment argument articulated in Goldberg’s concurrence, “on analysis they turn out to be the same thing—merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable, or offensive.” Such an inherently standardless approach, Black explained, offered far less dependable protection for core constitutional rights than the firm literalism that he for many years had championed.

Potter Stewart’s much briefer dissent conceded that the Connecticut statute was “an uncommonly silly law.” He volunteered that “I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice,” and that “professional counsel about methods of birth control should be available to all.” But, like Black, whose dissent he joined just as Black joined his, he could find no specific constitutional guarantee which the Connecticut law infringed upon, and hence he too had no alternative but to vote to affirm.75

Tom Emerson and Katie Roraback had told Estelle Griswold and Lee Buxton that the Supreme Court decision was quite likely to be announced on Monday morning, June 7, and so there was little sense of surprise—at either the timing or the outcome—when the word reached New Haven shortly before noon. “We were pretty sure the ruling would be favorable,” Estelle confessed to one reporter, and she directed many of her remarks toward praising Lee Buxton, who was attending a daughter’s prep school graduation in Massachusetts before leaving that evening to fly to France for a professional conference in Paris. Buxton himself told journalists that “It’s a great advance for married couples in our state to be able to live a normal life without breaking the law.” And Estelle, privately very disappointed that PPLC’s preparations were not much further along, also emphasized to the press that “As soon as we have the funds and the professional staff, we will reopen our clinic here in New Haven for married women.”

The Roman Catholic hierarchy’s reaction was relatively subdued. Hartford Archbishop Henry J. O’Brien told the Associated Press that “Catholics, in common with our fellow citizens, recognize this decision as a valid interpretation of constitutional law. However,” he went on, “I must emphasize that this is a judicial opinion, and it in no way involves the morality of the question,” for “artificial contraception remains immoral by the law of God.” Father John Knott of the National Catholic Welfare Conference’s Family Life Bureau noted that the Connecticut law “was a bad one because it was unenforceable,” and, echoing Cardinal Cushing’s statement a year earlier, added that “the church does not seek to use the power of the state to compel compliance with its moral views.”76

Editorial reaction to the Court’s decision was largely but not unanimously positive. The New York Times, noting how “once again … the failure of the states to protect individual liberties has impelled the Court to move onto untrod ground,” nonetheless welcomed Griswold as “a milestone in the judiciary’s march toward enlarged guardianship of the nation’s freedoms.” Somewhat more enthusiastically, the Washington Post declared that the “protection of privacy is the central purpose of the Constitution, or at least of its Bill of Rights,” and added that indeed “the idea of privacy is implicit in the idea of a government of limited powers.” Black’s and Stewart’s dissenting rationale, the Post observed, “strikes us as judicial restraint carried to the point of abdication.”

The conservative Richmond Times-Dispatch sided with Hugo Black, and the Boston Herald called the Douglas opinion “rather a fuzzy one.” Several other Massachusetts papers each called the decision “wise,” but the Worcester Telegram observed that the justices would not get “high marks for judicial precision” even though “by common consensus” there was of course a “zone of privacy” surrounding marriage. Life magazine, in a substantial piece that otherwise was more sympathetic to Black than to Douglas, nonetheless conceded that in circumstances where legislatures failed to act, “it is surely better that the Court should fill the gap than that nobody should.”

Roman Catholic editorial reaction was somewhat muffled but generally positive. The Jesuit magazine America noted the irony of some of the justices essentially having to rely on “higher law” or “natural law” derivations in order to strike down a law that the church for so many decades had defended on quite different but similarly labeled “natural law” grounds, and the progressive journal Commonweal welcomed Griswold as “long overdue” even though legally “muddy.” Both in Connecticut and Massachusetts, Commonweal added, the Catholic hierarchy should have dropped its opposition to legislative change long before Griswold or even Poe started on its way to the Supreme Court: “The entire round of court struggles was unnecessary, a dubious tribute to the power of a determined minority to impose their moral values on others.”77

In the eyes of many PPLC members and veterans, the credit for Griswold and for winning the struggle that Kit Hepburn had first undertaken forty-two years earlier largely if not wholly went to the woman whose name had ended up on the decisive case—and who had quietly celebrated her sixty-fifth birthday on June 8, the day after the decision was announced. Mabel Robbins, hired as the league’s first full-time staff member in the Hartford clinic thirty years earlier and now long-retired, wrote Estelle to say that “I felt three-fourths of the victory was due to your leadership and judgment, above everyone else.” Hilda Standish, one of the other very few surviving veterans from the Hepburn era, felt likewise. Given PPLC’s very limited prospects for success as of 1954, when Estelle first arrived, she had accomplished a task “that not many people could have done,” Standish believed.

Years later former PPLC president Claudia McGinley would claim that “Estelle had all the ideas; we all helped implement them.” Virtually all of Estelle’s colleagues would use one and the same adjective as their first word or in their first phrase when asked to describe her: dynamic. “She was an inspiration of energy and determination and dedication to getting the job done,” McGinley recalled. “She loved doing it and we loved her for doing it.” Lee Buxton’s then-wife Helen thought Estelle was “an incredible woman.” “If it hadn’t been for her energy, I sometimes wonder what might have happened.” Two decades later, Lucia Parks, PPLC president from 1961 to 1964, thought she knew the answer: “Without her we might still have that birth control law.” Estelle, she said, “carried Planned Parenthood along as no one else could have … I am practically able to believe that, help or no help, and given time, Estelle Griswold could have gotten the Connecticut birth control law thrown out all by herself.”⁷⁸

But Estelle herself thought they were all wrong. Years later, in the only extended interview reflecting back on the events that had propelled her name into virtually every book concerning American civil liberties and constitutional law, her attitude was much the same as it had been that Monday when the decision came down. “I have always been a little uncomfortable about the case being called Griswold versus Connecticut because actually the case in my mind should be Buxton.” And indeed, ten years later, when an entirely different generation of PPLC members sought to bring her back to New Haven for an anniversary dinner, Estelle Griswold declined. “I would feel pretentious sitting at the head table now that Dr. Buxton and Fowler Harper are gone.”79

Estelle’s greatest regret about the victory they had won was that Griswold’s principal architect had not lived to see the civil liberties triumph to which he had devoted much of his final seven years of life. And to no one, not even Estelle, did Griswold mean more than it meant to one person whom no reporter thought to call for comment that Monday afternoon. But the very next morning Miriam Harper sat down and wrote to William O. Douglas, whom Fowler had known years earlier, to thank him for the very personal monument that the Supreme Court had constructed:

Having lived with Fowler through almost every facet of the Birth Control case for the past many years, I cannot refrain from writing to tell you how pleased Fowler would have been with your opinion this week. It is one of the great sadnesses of life that he could not see his work come to fruition. As you know, I’m sure, Fowler’s cause was always for the civil rights of people, and in this case to keep the sanctity of the home and the marital relationship. I feel the outcome of this case is a fitting memorial to Fowler and will have widespread effects.⁸⁰

Lee Buxton flew to Paris from Boston’s Logan Airport that same evening that Griswold was announced, but first he took the time, as Tom Emerson would recall it in later years, to call Emerson and congratulate him on the win. “In spite of the long years of effort, it really may have been worthwhile,” Lee told Tom in a follow-up note. Lee like Estelle insisted that no special accolades were due him personally, and he told PPFA’s Fred Jaffe that “full credit for all of this should go to the extraordinary amount of legal persistence and patience that was put in by Fowler Harper, Kate Roraback and Tom Emerson.” But on the phone that afternoon, at least as Tom later remembered, Lee had more than half seriously said to him that they were not yet done, that they ought to consider tackling laws prohibiting most if not all therapeutic abortions. Tom had laughed and said something like “Well, that’s going to take twenty-five years,” but the very next day Helen Buxton, writing Tom a thank-you note of her own in Lee’s absence, made much the same point. Picking up on a New York Times profile that morning that had termed Lee a “gentle crusader,” Helen expressed displeasure at the paper’s choice of adjectives and noted that now “maybe he will take on another cause such as the abortion laws.” Years later Helen, remembering some of those 1965 comments, would reaffirm that Lee had indeed been thinking in that direction, “very much so. It was the next step. If he hadn’t gotten sick, I’m sure he would have taken it on.”

But Lee Buxton was sick, and it was a sickness that would preclude any second crusade with either Tom or Estelle. At times it seemed as if Estelle silently wondered whether some unspoken pressures from being involved in the case had taken a deep and debilitating toll on Lee, inflicting damage that otherwise would not have occurred, but Lee’s rapid decline in the wake of the Court victory was just as painful for Estelle and others as the tragic and untimely death of Fowler Harper.

Helen Buxton always thought that the illness and decline were not a price that Lee paid for Griswold, but were instead the result of “a family characteristic, a physical thing that was catching up with him.” One friend characterized it succinctly as “a genetic predisposition to clinical depression,” and alcohol abuse coupled with the use of barbiturates played a central role as it accelerated. By late in the fall of 1965 Lee’s situation had deteriorated to the point where he was forced to go on leave from Yale, and by the end of the year he had been admitted first to the psychiatric ward at Columbia-Presbyterian Hospital in New York and then to an institution in Fairfield County, Connecticut. Antidepressant drugs for a time alleviated matters somewhat, but by the fall of 1966 Lee’s condition had worsened significantly and he returned to Columbia-Presbyterian. In the spring of 1967 he had improved to the point where he was able to return to Yale and to some involvement in other professional activities, but by that stage his family had broken apart. Lee married the widow of a former colleague, and took a long trip through the Far East, but within two years he was dead. One year later his eldest son, only twenty-eight years old, was dead as well. Lee had “faced his personal problems with an extraordinary amount of courage and humor,” one close colleague remembered in a memorial address. “It is unfortunate that calamity should strike such a man at the peak of his success.”81

Tom Emerson never bragged to a soul about how his prediction of a 7 to 2 Supreme Court victory had proven to be precisely correct. Just like Estelle and Lee, he too declined to take any special credit for what had been won. When Cornelia Jahncke wrote him formal thanks on behalf of PPLC, Tom replied self-effacingly that “the basic work on the case had already been done by Fowler Harper and Catherine Roraback,” though “I was happy to have a hand in it at the end.” Several months later, reflecting upon what PPLC and the Supreme Court had wrought, Tom observed that the new status accorded a right to privacy was “a bold innovation” on the part of the Court but also noted that the more basic doctrine of how the liberty language in “the due process clause protects certain fundamental rights not expressly mentioned in the Bill of Rights or elsewhere in the Constitution is well established” already. In the future, he said, it was quite possible that the novel usage that Griswold made of the Ninth Amendment “might be utilized to expand the concept of privacy, or, perhaps, to guarantee other basic rights. It would hardly be surprising, however, if this development were some decades away.” Noting how all of the affirmative opinions had placed significant rhetorical emphasis upon the importance of marital privacy, Tom pointed out that “It is conceivable that in future cases the Court will limit the doctrine to the marriage relationship.” However, he emphasized, “such an outcome seems unlikely, since constitutional doctrines have a way of expanding beyond the boundaries of the original case.” “It is conceivable,” he remarked, “that sometime in the future, as mores change … all sexual activities of two consenting adults will be brought within the right of privacy.” Additionally, if Griswold’s privacy doctrine did develop expansively, it was also possible, Tom said, perhaps hearkening back to Lee and Helen Buxton’s earlier comments, that “the way would be open for an attack upon significant aspects of the abortion laws.”82

The constitutional right to privacy created by the Supreme Court in Griswold, as Tom Emerson’s doctrinal comments clearly reflected, was not without suggestive precursors. Thomas Cooley’s 1888 coining of the “right to be let alone” was among the best known, but even “the right to privacy” itself, although in a very different legal application than that of Griswold, had already been quietly present on the American legal scene for three quarters of a century. Less than two years after Cooley’s treatise appeared, a well-known journalist writing in Scribner’s Magazine, E. L. Godkin, first spoke of “the right to privacy” in the context of criticizing personally salacious and intrusive newspaper reporting. Five months later two young Boston lawyers, Samuel D. Warren and Louis D. Brandeis, used that simple phrase as the title for a Harvard Law Review essay that discussed how “political, social, and economic changes entail the recognition of new rights” and called for affirmation of “a general right to privacy for thoughts, emotions, and sensations.” Like Godkin, it was “the unwarranted invasion of individual privacy” by the press that troubled Warren and Brandeis, and in calling for shielding of “the private life, habits, acts, and relations of an individual” they emphasized that “the general object is to protect the privacy of private life.” Their advocacy of new statutory protection against the excesses of the “yellow” press drew widespread approbation, but neither popular magazines such as The Nation nor professional journals such as the Northwestern Law Review saw much chance for actual legislative action that would open the way for tort law civil damage suits against irresponsible publications.83

Warren and Brandeis’s article generated considerable ongoing attention in legal circles, and several years later Augustus N. Hand—who in 1936 would author the landmark federal circuit court opinion in United States v. One Package—enthusiastically endorsed their argument, saying that privacy was “an extension if not a part” of what he termed “the right of personal liberty.” In 1902, however, New York’s top court in a 4 to 3 ruling in Abigail Roberson v. Rochester Folding Box Co. refused to apply the Warren and Brandeis concept on behalf of a young woman whose permission had not been sought or attained before her photograph was employed as an illustration in a baking products advertisement which characterized either her and/or the product as the “flour of the family.” That decision met with “a storm of professional, as well as popular, disapproval,” and three years later the Supreme Court of Georgia, in the first ever victory for a tort law right of privacy, ruled in favor of an Atlanta man, Paolo Pavesich, who had filed suit after a life insurance company had used his picture in an advertisement without permission. “Each person has a liberty of privacy,” the Georgia court declared, “derived from natural law” and protected by the constitutional language of due process. “The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence.”⁸⁴

Pavesich v. New England Life Insurance Co. was welcomed and praised throughout the legal profession, and by the time Louis D. Brandeis joined the U.S. Supreme Court in 1916 the privacy concept he had helped introduce a quarter century earlier was slowly gaining official favor. Even before his arrival the high court had given some form of passing recognition to personal privacy on at least three occasions, and even in advance of his well-known statement in the 1928 wiretapping case of Olmstead v. United States, Brandeis had occasion to speak of “the privacy and freedom of the home” in a 1920 dissent. His Olmstead statement was only of persuasive, not precedental value, for no other justice joined him in it, and it was made wholly within the bounds of the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” but it nonetheless became a much-celebrated declaration of individual civil liberties. The framers of the Constitution, Brandeis said, “conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”85

Meyer (1923), Pierce (1925), and Prince (1944) all contained at least symbolic bows toward what Justice Rutledge in the latter of them termed “the private realm of family life which the state cannot enter,” but while Brandeis’s vision of a “right to privacy” continued to have a modestly accepted presence within some states’ civil law of torts, the only significant Supreme Court notations of the concept between Olmstead and the 1961 dissents in Poe came from Griswold’s own author, William O. Douglas. In 1942, in a well-known equal protection decision voiding a state statute that allowed for punitive sterilization of some selective categories of recidivist criminals, Douglas had not mentioned privacy but had spoken of marriage and procreation as “one of the basic civil rights of man.” Chief Justice Stone had concurred on due process liberty grounds, but in Griswold Douglas failed to cite either of those opinions. Nor did he refer to his opinion for the Court in a 1948 Fourth Amendment case, McDonald v. United States, where he spoke of “the constitutional barrier that protects the privacy of the individual” as well as the constitutionally protected “privacy of the home.” Four years later, dissenting in a District of Columbia case, Public Utilities Commission v. Pollak, Douglas wrote movingly about “the constitutional right to be let alone” and declared that “Liberty in the constitutional sense must mean more than freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom.” Douglas likewise made no reference to those 1952 remarks in his Griswold opinion, and neither did he footnote his extensive but off-the-bench comments regarding privacy in a 1958 book where he also, in the context of discussing the right to travel, spoke of it as lying “in the vague penumbra of the law.” Privacy or the “right to be let alone is a guarantee that draws substance from several provisions of the Constitution, including the First, the Fourth, and the Fifth Amendments,” and “the right to be let alone” was itself a “congeries” of rights that “concern the right of privacy—sometimes explicit and sometimes implicit in the Constitution. This right of privacy protects freedom of religion and freedom of conscience. It protects the privacy of the home and the dignity of the individual.”86

Douglas’s 1961 dissent in Poe, even more so than his 1958 remarks in the book, did a significantly better job of articulating a strong basis for constitutional protection of procreative marital privacy than did his opinion for the Court in Griswold, as a number of legal commentators were quick to point out. More than three dozen critiques of Griswold appeared within the following two years, and while a good number expressed disquiet over the “nebulous language” Douglas had employed, virtually all of them endorsed the outcome of the case, if for no other reason than that it was “probably the only reasonable one in view of the facts involved.”⁸⁷ A few observers praised the decision, with one well-known professor asserting that “Griswold marks an important advance in the protection of individual and group liberties in this country.” “It is that quality, rather than the specific holding, which gives significance to the decision,” he conceded, and he went on to explain that Douglas’s approach no doubt resulted from a desire to avoid both the substantive due process heritage associated with John Harlan’s approach to Fourteenth Amendment liberty and the literalistic limitations championed by Hugo Black.

One perceptive commentator, Robert G. Dixon, took issue with some of the simple rhetorical labels that might be applied to Griswold, pointing out that “The privacy issue” is not “simply a right to be let alone; rather, it takes on an aspect of an affirmative right of access to information concerning a very private sphere of life,” for “information relevant to marital privacies is what Griswold … comes down to.” Dixon explained that “By invoking the married couples’ fictional fear of prosecution for use of contraceptives to give the clinic defendants standing to defend themselves from actual prosecution for giving advice, the Court tied marital privacy and access to information together into a single bundle of rights.” He emphasized that “unless some kind of information-access theory is recognized as implicit in Griswold, then it stands as a decision without a satisfying rationale.”⁸⁸

But a significant proportion of law school critics were troubled by Douglas’s “curious, puzzling mixture of reasoning” and by its “ambiguous and uncertain” reach. One splenetic commentator attacked Griswold as “a malformation of constitutional law which thrives because of the conceptual vacuum surrounding the legal notion of privacy,” but more common complaints were that the opinion was “far from satisfying,” “shot through with serious weaknesses,” or “rather opaque.” “Only the rhapsody on marriage,” one subsequent writer opined, “saves an opinion whose concepts fall suddenly in a heap.”89

Some Griswold critics focused upon Douglas’s and especially Arthur Goldberg’s utilization of the Ninth Amendment,⁹⁰ while others drew a particular bead on Douglas’s use of the term “penumbra.” Originally coined by astronomer Johannes Kepler in 1604 to describe the area of partial or shaded illumination occasioned by an eclipse, many commentators found Douglas’s use of the spatial metaphor “obfuscating rather than clarifying,”⁹¹ even though—as many critics failed to realize—the term already had been employed more than twenty times in previous Supreme Court opinions. Oliver Wendell Holmes had used it in an 1873 law review article—“the penumbra between darkness and light”—then employed it three times at the turn of the century while on the Massachusetts Supreme Judicial Court, and subsequently utilized it in four Supreme Court opinions, including a dissent of his own in Olmstead v. United States, where he spoke of “the penumbra of the Fourth and Fifth Amendments.” Learned Hand, Benjamin Cardozo, and Douglas himself had all employed “penumbra” on multiple earlier occasions, and even Felix Frankfurter had used it once. One of the most perceptive students of Griswold later noted that “Douglas could have replaced penumbra with periphery or fringe with no loss of meaning or force,” but his usage of so unusual a word in such a central role in the opinion became an easy target for those whose objections to either Douglas’s formulation or the decision itself were otherwise more diffuse.⁹²

Within a half-dozen years of the decision, however, a one-time Yale Law School colleague of both Fowler Harper and Tom Emerson emerged as Griswold’s most prominent and outspoken critic. Originally Robert H. Bork had started out as a rather pronounced fan of the ruling. Writing in 1968 he had conceded that Douglas’s opinion was “shallow, murky,” “rhetorical” and of “poor quality,” but nonetheless Douglas and the Court’s basic “idea of deriving new rights from old is valid and valuable. The construction of new rights can start from existing constitutional guarantees, particularly the first eight amendments, which may properly be taken as specific examples of the general set of natural rights contemplated” by the Framers and specifically by the Ninth Amendment. Out of that base, Bork explained, “the judge can construct principles that explain existing constitutional rights and extrapolate from them to define new natural rights,” just as the Court in part had done in Griswold.

But within three years Professor Bork’s tune had changed completely. Writing in a 1971 article that became famous within the legal profession long before its author became a public figure, Bork expressly retracted his 1968 remarks and now insisted that a judge “must stick close to the text and the history, and their fair implications, and not construct new rights.” Griswold’s right to privacy, he now explained, “fails every test of neutrality. The derivation of the principle was utterly specious, and so was its definition. In fact, we are left with no idea of what the principle really forbids.” That meant that Griswold “is an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it,” since it provided “no idea of the sweep of the right of privacy and hence no notion of the cases to which it may or may not be applied in the future.” Any application of due process liberty “is and always has been an improper doctrine,” and “Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution.”93

In subsequent years Bork further intensified his attack on Griswold, telling one audience in 1982 that “The result in Griswold could not have been reached by proper interpretation of the Constitution” and a 1985 interviewer that “I don’t think there is a supportable method of constitutional reasoning underlying the Griswold decision.” Two years later Bork had occasion to expand on his feelings, explaining that Griswold was “not a case of Connecticut going out and doing anything” to enforce the 1879 statute, but had been cooked up by his Yale Law School colleagues “because they like this kind of litigation.” “The only reason” the “utterly antique” Connecticut law had “stayed on the statute book was that it was not enforced,” Bork explained. “If anybody had tried to enforce that against a married couple, he would have been out of office instantly and the law would have been repealed.” However, “some professors found that law in the books and tried to frame a case to challenge it on constitutional grounds,” but “they had trouble getting anybody arrested.” Then, after Poe, they had “engaged in enormous efforts to get somebody prosecuted,” and “they had a terrible time, the Yale professors did, getting these doctors arrested.” The “only person who could get arrested was a doctor who advertised that he was giving birth control information,” Bork went on, “and the thing was really a test case on an abstract principle.” “I think both sides regarded it as an interesting test case. The whole case was practically an academic exercise.”

Bork willingly conceded that “the Connecticut law was an outrage and it would have been more of an outrage if they ever enforced it against an individual.” If faced with such a law as a legislator, “I would vote against that statute instantly,” for with regard to Griswold’s result, “I agreed with it politically.” Bork also concurred that “No civilized person wants to live in a society without a lot of privacy in it,” and acknowledged that the framers of the Constitution “protected privacy in a variety of ways” in a number of provisions in the Bill of Rights. “There is a lot of privacy in the Constitution,” and “as to the marital right of privacy, I think it is essential to a civilized society.” Indeed, “I think marital privacy is a right older than the Bill of Rights.”

But “the mere fact that a law is outrageous is not enough to make it unconstitutional,” Bork explained. Moreover, Justice Douglas’s specter of police searches of marital bedrooms in Griswold was “wholly bizarre and imaginary,” for “privacy was not the issue in that case. It was the use of contraceptives.” There was a much more basic problem with Griswold, however, for “the right of privacy, as defined or undefined by Justice Douglas, was a free-floating right that was not derived in a principled fashion from constitutional materials.” Douglas’s right to privacy “does not having any rooting in the Constitution” and instead “comes out of nowhere.” Bork sought to explain that “it is not a right of privacy I am opposed to. It is a generalized, undefined right of privacy that is not drawn from any constitutional provision.” “I certainly would not accept emanations and penumbras analysis, which is I think less an analysis than a metaphor,” and in Griswold he would have joined Justices Black and Stewart in dissent.94

Offered an opportunity to review and reconsider his Griswold remarks, Bork continued to maintain that “Griswold, even in 1965, was for all practical purposes nothing more than a test case.” He dismissed Nelson, noted Frankfurter’s opinion in Poe, and, not having considered the experiences of Ruth and Bob “Oldendorf,” or even of Jean and Marvin Durning, concluded that “it cannot realistically be said that failure to invalidate the Connecticut law would have had any material effect on the ability of married couples to use contraceptives in the privacy of their homes.”

Two years later, and with much more time available to insure the accuracy of his comments, Bork asserted that “the spurious right of privacy that Griswold created” had arisen from a case involving “two doctors” where “the lawyers had a difficult time getting the state even to fine two doctors as accessories.” “Anyone who reads Griswold can see that it was not an adjustment of an old principle to a new reality but the creation of a new principle by tour de force or, less politely, by sleight of hand.” Contending that “the reasoning of Griswold was not meant to be taken seriously by judges, only by the general public,” Bork also went out of his way to expressly reject John Harlan’s landmark dissent in Poe as well as the opinions in Griswold: “Harlan’s arguments were entirely legislative. The stark fact is that the Constitution has nothing whatever to do with issues of sexual morality,” and “Poe v. Ullman led directly to the intellectual catastrophe of Griswold.”95

Bork’s critique of Griswold certainly did not prevail, but it did smooth the way for other legal commentators who similarly advocated scholarly and judicial rejection of the decision. One law journal writer, explaining that “the Court and the American polity have been ill-served by the creation of a general constitutional right of privacy,” insisted that “it is time to cast Griswold aside” and contended that “no reason exists for not leaving the resolution of privacy-related issues to the political branches.” An undistinguished but often-quoted one-time Justice Department official and op-ed contributor called Griswold “one of the worst decisions the court ever handed down” and later seemed to suggest that Griswold and Buxton’s convictions indeed should have been affirmed rather than voided on “utterly incomprehensible” grounds. A serious legal historian, while conceding that the Connecticut statute was “utterly unreasonable,” nevertheless termed Griswold the single “most egregious example” of excessive Warren Court activism. And the Solicitor General of the United States in the early 1980s called Griswold “pernicious” and explained that “the Court was basically wrong to infer a general right of privacy from shadows allegedly cast by the Bill of Rights … We have to accept that there’s a difference between laws that embody bad policy and laws that a state legislature lacks the power to enact. A law can be bad—like the Connecticut law in Griswold—without being unconstitutional.”⁹⁶

But the vast majority of experts who sought to pronounce judgment upon Griswold not only—like Robert Bork—knew nothing of the real-life experiences of Ruth and Bob “Oldendorf” and Jean and Marvin Durning, they also had not the slightest idea who “Griswold” was. A 1970s book on the right to privacy sponsored by the American Civil Liberties Union told readers about a case that had involved “Mary Griswold” and “Dr. George Buxton,”⁹⁷ and several years later a prominent political scientist asserted that “the ACLU had been, in large part, responsible for the successful litigation of Griswold.”⁹⁸ Another political scientist presented Estelle as the “wife of a Yale University professor”⁹⁹—that dangerous band whom Robert Bork blamed for the case—and a Princeton thesis writer presented a much fuller biographical identification: “Mrs. Whitney Griswold, a very prim and proper elderly lady from New Haven and widow of the former president of Yale University.”100 An extremely prominent Yale Law School professor twice wrote about “The fact that Estelle Griswold was suing Connecticut,” apparently as a plaintiff, rather than noting that she was a defendant appealing a criminal conviction.¹⁰¹ Another well-known law professor highlighted his criticism of Griswold by stressing that “it is significant that the Connecticut legislature was on the point of repealing the statute … when the Court obligingly preempted the question,”¹⁰² and a curmudgeonly political scientist claimed that since one house of the Connecticut legislature had voted for repeal, “a Brandeisian court would have withheld decision for a reasonable period to give the legislature an opportunity to complete its work.” Historical accuracy notwithstanding, such restraint would have ostensibly allowed the case to become moot and thus “Mr. Griswold’s conviction would have died by abatement.”¹⁰³

A long list of Griswold commentators joined that critic in presuming that “Griswold” of course was male,¹⁰⁴ like themselves, and a good number of others joined Robert Bork in presuming that “Griswold,” even if not expressly masculine, was certainly “Dr. Griswold.”¹⁰⁵ One supportive but sometimes addled United States Senator took matters one creative step further, either misunderstanding the nature of the prosecution, or presuming a different sort of partnership between Estelle and Lee Buxton, when he discoursed on “the married couple in the Griswold case.”¹⁰⁶

Whether or not latter-day legal experts knew a single thing about the story that underlay PPLC’s final victory after forty-two years of struggle, Estelle Griswold had two primary intentions in the weeks that immediately followed the June 7, 1965, Supreme Court decision. Her top priority was to make up for lost time and move as quickly as possible to open an initial New Haven clinic. Her second decision, one she privately had been mulling even in advance of the ruling, was to tell Cornelia Jahncke and PPLC’s other officers that she would step down as executive director and go into at least partial retirement after the clinic was opened and some time before the end of 1965.

The ongoing tensions between Estelle and the New Haven women continued to hinder and distract from efforts to speed the opening of the clinic, and not until mid-August was it finally resolved that Dr. Virginia Stuermer—one of the volunteer clinic physicians from November 1961—would serve as medical director once the facility opened sometime in September. In New York at midsummer the state legislature repealed the partially nullified nineteenth-century anticontraception statute under which Margaret Sanger had been convicted almost fifty years earlier. Similarly, despite an August rebuff in one house of the Massachusetts legislature, that state too altered its longstanding Comstock law several months later, replacing its 1879 language with a provision that followed Griswold’s apparent lead by legalizing the provision of birth control services to married—but only married—individuals.107

On Monday evening, September 20, 1965, on the first floor of PPLC’s headquarters house at 406 Orange Street in New Haven, the first session of new clinic services took place with nine patients in attendance. Almost four years had passed since the November events of 1961; twenty-five years and six months—to the very day—had passed since Sallie Pease had closed the league’s clinics on March 20, 1940, in the immediate wake of State v. Nelson. Clinic sessions would be held three times a week; six months later a second PPLC clinic would open in Stamford, soon followed by a third in Hartford.¹⁰⁸

Estelle Griswold had completed her mission. She asked that her resignation take effect as of November 1, but PPLC’s internal tensions so hampered a search for a successor that she extended her tenure first to the end of November and then until the end of the year. The board presented her with a formal resolution commending her “great skill, integrity and courage,” and expressing their “abiding esteem and affection.” PPFA honored her and Lee Buxton with the Federation’s major prize, but with Fowler gone and Lee so clearly ailing any sense of joy was more than tempered by the personal tragedies that had accompanied the legal triumph.

The legacy of Estelle Griswold, like the legacy of Kit Hepburn before her, would very much live onward. Biologically, Estelle was undeniably childless, but legally and politically Griswold would have many children—some of whom were already attending law school. As Estelle herself said, “I knew that there was another job to be done.”¹⁰⁹