In this piece, I am examining contraception from a legal — not a moral — point of view.
In that context, I raise the following questions:
-- Does a married couple have the right to use contraception during their private act of intercourse?
-- Does the government have the right to enter their bedroom to investigate whether they are using a contraceptive?
Those were addressed by the U.S. Supreme Court in Griswold v. Connecticut (1965). There, the executive director of the Planned Parenthood League of Connecticut, and its medical director were convicted of violating Connecticut law for giving married persons advice on how to prevent conception and prescribing a contraceptive.
Justice William O. Douglas wrote the majority opinion declaring the state statute unconstitutional.
"The (cited) 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. ...
"The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' ...
"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
"We deal with a right of privacy older than the Bill of Rights ... Marriage is ... intimate to the degree of being sacred. It is an association that promotes a way of life, ... ; a harmony in living, ... a bilateral loyalty... [I]t is an association for as noble a purpose as any involved in our prior decisions."
In an estimable concurrence, Justice Arthur Goldberg wrote, "The Court stated many years ago that the Due Process Clause protects those liberties that are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.'
"The language and history of the Ninth Amendment reveal 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 first eight constitutional amendments.
"The Ninth Amendment reads, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' The Amendment is almost entirely the work of James Madison. ... It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.
"A judicial construction that this fundamental right [marriage] is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"
Few would argue that Griswold did not reach the right result. Even conservative agree with the result -- though they are uncomfortable with the terms of "penumbras" and emanations."
They feel Justice Douglas seems to be saying, " I can't find it anywhere in the language of the first eight amendments, but I know it's there somewhere!"
On the other hand, everybody -- especially conservatives -- seems comfortable with Ninth Amendment justification set forth in the concurring opinion.
Without question, Americans enjoyed the right to marry before the Constitution was adopted. And nobody, ever for a second, thought they were giving up the right to marry (which unquestionably included the right to have intercourse) when they voted to ratify the our Constitution. Except in the mind of a totalitarian, marriage is "fundamental right" and is unquestionably one of the other rights -- "others retained by the people" -- protected by the Ninth Amendment.
Forty-five years ago, the majority never dreamed that the government would want to get into the business of limiting the size of families. But Mr. Justice Goldberg for foresaw that eventuality.
"While it may shock some of my Brethren that the Court today holds that the Constitution protects the right of marital privacy, in my view it is far more shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against such totalitarian limitation of family size, which is at complete variance with our constitutional concepts.
"Yet, if upon a showing of a slender basis of rationality, a law outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law requiring compulsory birth control also would seem to be valid. In my view, however, both types of law would unjustifiably intrude upon rights of marital privacy which are constitutionally protected."
I can't help but wonder what Justice Goldberg would have said of about government requiring insurers to provide contraceptive coverage.
For those of you who would prefer not to share your bedroom with the government, the Ninth Amendment is your best friend. Griswold makes it "legal" for you (and not the government) to make the "moral" choice to use or not to use contraceptives.
Posted Online: March 27, 2012, 2:25 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
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