Would Griswold v. Connecticut Be Decided the Same Way Today?
Original Holding (1965)
The Supreme Court struck down a Connecticut statute prohibiting the use of contraceptives, holding that the Constitution protects a right to marital privacy. Justice Douglas's majority opinion located this right in the 'penumbras' and 'emanations' of the Bill of Rights, particularly the First, Third, Fourth, Fifth, and Ninth Amendments. Concurring opinions offered alternative constitutional foundations, including the Ninth Amendment (Justice Goldberg) and the Due Process Clause (Justice Harlan).
What Has Changed
Griswold is the foundational decision in the constitutional right to privacy, establishing the doctrinal basis that would later support the rights recognized in Eisenstadt v. Baird (contraception for unmarried individuals), Roe v. Wade (abortion), Lawrence v. Texas (intimate sexual conduct), and Obergefell v. Hodges (same-sex marriage). The 'penumbras and emanations' language of Douglas's opinion has been widely mocked, but the underlying principle that the Constitution protects certain intimate personal decisions from government intrusion has become deeply embedded in American constitutional law.
The right to contraception is now so widely accepted that it is difficult to imagine a serious political effort to restrict access to contraceptives for married couples. However, the Dobbs decision's rejection of unenumerated rights to reproductive autonomy has raised questions about the doctrinal security of Griswold. Justice Thomas's Dobbs concurrence listed Griswold among the substantive due process precedents that should be reconsidered, though the Dobbs majority expressly disclaimed any intent to disturb the right to contraception.
The Right to Contraception Act, passed by the House of Representatives in 2022 but not enacted into law as of this writing, reflects legislative concern about Griswold's doctrinal vulnerability. Several states have moved to codify the right to contraception in state law, providing additional protection independent of federal constitutional doctrine.
Key Changed Factors
Near-universal social acceptance of contraception across political and religious lines
Dobbs majority's express disclaimer that its reasoning does not extend to Griswold
Legislative efforts to codify the right to contraception at federal and state levels
Development of alternative constitutional bases for the right to contraception beyond penumbras doctrine
Massive reliance interests built on six decades of constitutional protection for contraception
Analysis
Griswold would almost certainly survive a modern challenge for several overlapping reasons. First, the right to contraception is supported by an extraordinarily broad social consensus that transcends political and ideological divisions. Unlike abortion, which has always divided the American public, access to contraception enjoys near-universal support. The political costs of overruling Griswold would be catastrophic for any faction that attempted it.
Second, the constitutional case for a right to marital privacy and contraceptive access can be made on multiple grounds that do not depend on the specific 'penumbras and emanations' reasoning of Douglas's original opinion. The Due Process Clause provides a textual basis through either substantive due process (as Justice Harlan argued in his concurrence) or through the broader liberty interest recognized in the Fourteenth Amendment. Even under the historical-tradition test employed in Dobbs, the right to marital privacy and contraception has stronger historical roots than the right to abortion, as government regulation of contraception within marriage was always exceptional rather than commonplace.
Third, the reliance interests associated with Griswold are profound and far-reaching. The entire framework of modern family planning, public health policy, and personal autonomy is built on the assumption that the government cannot prohibit contraception. Overruling Griswold would generate social and economic disruption on a scale that dwarfs even the consequences of Dobbs.
Finally, even the most originalist members of the current Court have shown no inclination to question the right to contraception. While Justice Thomas's Dobbs concurrence mentioned Griswold, no other justice joined that concurrence, and the majority went out of its way to distinguish abortion from contraception. The practical likelihood of five justices voting to overrule Griswold is effectively zero for the foreseeable future.
Scholarly Debate
The scholarly debate about Griswold has evolved from constitutional theory to doctrinal architecture. The original controversy centered on whether the 'penumbras and emanations' approach provided a legitimate basis for recognizing unenumerated rights. Robert Bork's famous critique that the right to privacy has 'no constitutional basis' became a rallying cry for originalist critics of the decision and played a significant role in the defeat of his Supreme Court nomination in 1987.
Modern scholarship has largely moved beyond the question of whether a constitutional right to privacy exists to focus on its scope and proper doctrinal foundation. Randy Barnett has offered a libertarian defense of Griswold grounded in the Ninth Amendment and the presumption of liberty, arguing that the government bears the burden of justifying restrictions on personal conduct. Jed Rubenfeld has developed an anti-totalitarian reading that focuses not on privacy but on the right to be free from government-imposed identities and life trajectories. These alternative frameworks seek to ground the core principle of Griswold on more secure doctrinal foundations than Douglas's original opinion provided.
Cases That Modified or Applied This Precedent
- Eisenstadt v. Baird (1972)
- Lawrence v. Texas (2003)
- Dobbs v. Jackson Women's Health Organization (2022)
- Carey v. Population Services International (1977)
- Whole Woman's Health v. Hellerstedt (2016)