P.T. Barnum, Justice Harlan, and Connecticut’s Role in the Development of the Right to Privacy
By James I. Glasser and Benjamin M. Daniels
Next year marks the 50th anniversary of Griswold v. Connecticut, 381 U.S. 479 (1965), the landmark case that recognized a constitutional right to privacy. Although the case is well known, the history leading to this important decision is not. The challenged statute in Griswold was championed by none other than Phineas T. Barnum, the founder of Barnum & Bailey circus. Barnum supported the legislation to curb both obscenity and the burgeoning use of contraceptives. Once passed, the law was on the books but was largely ignored for nearly 75 years. It was not until birth control clinics began popping up during World War II that Connecticut began to enforce the law. In 1939, two doctors and a nurse working at a clinic were arrested. These arrests were the opening salvo of court battles that would span the next 25 years. Ultimately, Justice John Marshall Harlan II (another Connecticut resident) would play a central role in overturning the Connecticut law championed by Barnum and in establishing the enduring right of privacy. Griswold profoundly changed civil liberties, laying the groundwork for recognition of the right to terminate a pregnancy (Roe v. Wade), the right to private, consensual same-sex relations (Lawrence v. Texas), and the right to choose family living arrangements (Moore v. East Cleveland).
P.T. Barnum, Champion of Victorian-Era Values
Connecticut’s anti-contraception statute was part of a national, Victorian-era movement to criminalize birth control. Born from complex issues of race, gender, and class that arose during post-Civil War urbanization, the anti-contraception movement was led by New Canaan, Connecticut, native Anthony Comstock, “a prominent anti-vice crusader who believed that anything remotely touching upon sex was obscene.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 n.19 (1983). Comstock founded the New York Society for the Suppression of Vice, a vigilante vice squad that seized obscene materials and arrested its distributors.
Comstock also lobbied for federal legislation to prohibit the circulation of obscene literature. In 1873, Congress passed the “Comstock Act,” which made it illegal to sell or distribute “any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion” through the U.S. Mail. See 42 Cong. Ch. 258, March 3, 1873, 17 Stat. 598. Comstock secured a position as a special Postal Inspector to enforce the Comstock Act, and used his position to impound or destroy items he considered lewd or obscene ranging from fine art to anatomy textbooks.
Soon after Congress passed the Comstock Act, states began enacting “mini-Comstock Acts.” In Connecticut, P.T. Barnum (by then a state senator from Bridgeport) took up the anti-obscenity cause. Initially, the Connecticut anti-contraception bill prohibited only the distribution of literature addressed to contraception and abortion. However, Barnum changed the bill’s focus when it reached the Connecticut legislature’s Joint Committee on Temperance. As chair of that committee, Barnum prepared a substitute bill that prohibited the “use” of “any drug, medicine, article, or instrument” for the “purpose of preventing conception.” Barnum also made it a crime to act as an “accessory” to the use of contraception, a clause aimed at doctors who prescribed contraceptives. The bill passed the legislature and became the most restrictive law in the United Sates, subjecting married couples (and their doctors) to arrest and possible imprisonment for using birth control.
Police Raids, Justice Harlan, and the Road to Griswold
Barnum’s Act, while on the books, was largely ignored until 1939, when attention was drawn to one group’s deliberate disregard of the law. The Connecticut Birth Control League had spent 15 years lobbying the Connecticut legislature to repeal Barnum’s Act. The League had found that contraceptives were available only to women who could afford private doctors. Notwithstanding (or perhaps because of) this reality, the legislature was unmoved by repeal efforts. In response, the League opened birth control clinics in Hartford, Greenwich, New Haven, and Stamford. The police and the public turned a blind eye to these public clinics.
However, this indifference changed to outrage when a League member publicly boasted about the opening of a new birth control clinic in Waterbury. A local newspaper reported the clinic’s opening and the article provoked a swift and vocal condemnation by Waterbury’s Catholic leaders. Police responded by raiding the Waterbury clinic and charging two doctors and a nurse with violations of the Barnum Act. The defendants brought an interlocutory appeal to challenge the constitutionality of the statute. The Connecticut Supreme Court upheld the statute in State v. Nelson, 126 Conn. 412 (1940). The State subsequently dismissed the charges against the doctors and the nurse, but the arrests sent a warning shot across the bow of clinics in Connecticut and many closed their doors.
After further efforts to repeal the law stalled, birth control advocates turned their attention to the courts. In 1941, a Yale doctor asked a court to declare that the Barnum Act allowed contraception if a pregnancy would be life-threatening and the statute violated his patients’ constitutional right to life. Frederick H. Wiggin (of Wiggin and Dana) argued the case on behalf of the doctor, raising constitutional arguments. Among other things, Wiggin compared the statute to various abortion statutes on the books in other states that provided an exception for situations where life was threatened. The Connecticut Supreme Court rejected these arguments and found the statute contained no exceptions. Tileston v. Ullman, 129 Conn. 84 (1942). The court noted that “there is another method [to protect the patients], positive and certain in result …. absolute abstention.” Id. at 92. The U.S. Supreme Court dismissed the appeal from this decision for lack of standing.
The next challenge to Barnum’s Act came in the fall of 1958. Three patients and their doctor again asked Connecticut courts to declare that the Connecticut statute violated their constitutional rights to life and liberty. All three patients suffered medical conditions that made pregnancy dangerous to their health. The Connecticut courts roundly rejected these claims, citing Tileston.
The U.S. Supreme Court dismissed the claims as nonjusticiable. In a decision authored by Justice Felix Frankfurter, Poe v. Ullman, the Court held that the controversy was not ripe because Connecticut had not imprisoned or fined anybody under the statute. The Supreme Court noted that contraceptives were widely available in Connecticut and openly sold in pharmacies statewide. The lack of enforcement effectively nullified the statute, meaning that there was no true case or controversy.
Justice John Marshall Harlan II dissented. An unlikely champion of the pro-contraceptive movement, Harlan was a “quiet and sober” man who was a member of the conservative wing of the Court. Often concurring with Justice Frankfurter, Harlan believed that “the Constitution is not a panacea for every blot upon the public welfare” and that the Supreme Court should not be “a general haven for reform movements.” See Reynolds v. Sims, 377 U.S. 533, 589 (1964) (Harlan, J., dissenting). He also was a Connecticut Yankee with a home in Weston, Connecticut. The Justice used his 7,000-foot estate (known locally as “Little Mountains”) to fly-fish, entertain law clerks, and decompress.
In his dissent from Poe, Harlan asserted that the majority’s opinion “does violence to established concepts of ‘justiciability,’ and unjustifiably leaves these appellants under the threat of unconstitutional prosecution.” Poe v. Ullman, 367 U.S. 497, 522 (1961) (Harlan, J., dissenting). Reaching the merits, he described the Connecticut statute as “an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life.” Id. at 539. The statute was unconstitutional, Harlan argued, because it violated the right to “liberty” guaranteed by the Fourteenth Amendment. This “liberty … cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.” Instead, Harlan believed “liberty” was “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”
Estelle Griswold and the Right to Privacy
Poe presented a quandary for Planned Parenthood, which had taken up the fight against Barnum’s Act. The organization had operated in Connecticut for years, but had not yet violated the statute due to a combination of fear of prosecution and the prospect of legislative reform. Planned Parenthood now had to choose between violating the law by opening a clinic and continuing a legislative reform effort that had failed for 50 years.
Harlan’s dissent signaled that at least some members of the Court were willing to strike down Barnum’s Act. One day after the Court issued Poe, Planned Parenthood disseminated a press release that “welcome[d] the recognition of the Court that the [Barnum] law has become a nullity” and promised to act “as rapidly as possible” to open a public birth control clinic. See David Garrow, Liberty & Sexuality, 196 (1998). The director of Planned Parenthood of Connecticut, Estelle Griswold, noted that she would “welcome prosecution by the state” so that courts would have the opportunity to overturn the “absurd and antiquated” Barnum Act. Id. Griswold was a Connecticut native who had been the director of the Connecticut chapter of Planned Parenthood since 1953. A product of Hartford public schools, Griswold had pursued a career as a singer before finally settling in New Haven. As director of Planned Parenthood, Griswold had helped with prior legislative efforts and with the Poe case. Now, she would take center stage.
Griswold announced that Planned Parenthood would open a birth control clinic in New Haven and scheduled a press conference at the clinic on November 2, 1961. Within one week of the clinic’s opening, police arrested Griswold and Lee Buxton, the former chair of the obstetrics and gynecology department at Yale’s medical school and the co-director of the clinic. Griswold reportedly was “overjoyed” to see the police and offered the officers copies of the clinic’s literature and pamphlets. See Garrow, at 198. The State formally charged Griswold and Buxton with violating the Barnum Act. Griswold and Buxton were convicted after a bench trial. Connecticut courts rejected all challenges to the convictions, citing Nelson, Tileston, and Poe. Griswold’s arrest and conviction finally put the Barnum Act squarely before the U.S. Supreme Court. In what may be the shortest landmark decision in Supreme Court history, the Court recognized the right to privacy – presaged by Harlan’s dissent in Poe – in the “penumbras” of the Bill of Rights. Writing for the Court, Justice Douglas noted that the Court previously had recognized constitutional rights that were not express in the Constitution. For example, the Constitution did not expressly recognize a right to control the education of one’s children or a right of the press to distribute publications. Yet, the Court found these rights to be an inherent part of the Constitutional fabric that give the guarantees life and substance. The right to privacy, Douglas reasoned, must exist to support the First Amendment (freedom of association), the Third Amendment (prohibition of quartering troops), the Fourth Amendment (unreasonable searches and seizures), the Fifth Amendment (right against self-incrimination), and the Ninth Amendment (rights left to the people).
Harlan concurred in Griswold, but took the more expansive view of the right to liberty that he had articulated in Poe. Harlan argued that the “penumbra” approach restricted the rights inherent in the Due Process Clause of the Fourteenth Amendment. Harlan worried that the Court’s reliance on penumbras could lead to a restrictive view of liberty that narrowed individual rights to those expressly or implicitly found in the Bill of Rights. Instead, Harlan believed that the Due Process Clause protected “basic values implicit in the concept of ordered liberty.”
Although his view did not carry the day, Harlan’s view of substantive due process has enduring relevance. The Court has described Justice Harlan’s Poe dissent as “[t]he second major opinion leading to the modern doctrine” of substantive due process. See Washington v. Glucksberg, 521 U.S. 702, 762 (Souter, J., concurring). In fact, the Court adopted Harlan’s reasoning in Planned Parenthood v. Casey, 595 U.S. 833, 850 (1992), which established the “undue burden” standard of evaluating abortion restrictions. Critics charge that Harlan’s approach gives judges carte blanche to enforce the unwritten purposes of the Due Process Clause, thereby removing important social issues from the democratic process. Harlan responded that judges could be trusted to exercise restraint in enforcing the idea of “liberty” in the Due Process Clause. After all, it was similar to the general language of other “specific rights” such as “freedom of speech,” which judges had interpreted and applied for years. Harlan believed that judges would be equally capable of interpreting “liberty.”
Although there were two other concurrences, all agreed that the “right to privacy” was “fundamental” and “substantive.” Justice Arthur Goldberg concurred, arguing that the Ninth Amendment, which states that the Bill of Rights does not exhaust all the rights retained by the people, contained a “fundamental right to marital privacy” that was not found in any other specific constitutional amendment. Justice Byron White argued for a combination of Harlan’s and Goldberg’s positions, finding the right in both the Ninth and the Fourteenth Amendment. Justices Hugo Black and Potter Stewart dissented.
After Griswold, the Supreme Court extended these same privacy protections to unmarried women in 1972. It also opened the door for Roe v. Wade the following year. The Court once again relied on Griswold when it applied the right to privacy in Lawrence v. Texas, the 2003 decision that protected the right of consensual same-sex relations in the privacy of the home. Events leading to these landmark decisions all were put in motion by a puritanical circus impresario who is famously remembered for saying, “the public is wiser than many imagine.”