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[Cite as Griswold v. Connecticut, 381 U.S. 479,
488, 490-493 (1965). Note: This decision regards a Connecticut law
criminalizing contraceptive devices and information. Justice Harlan's dissenting
opinion in Poe v. Ullman, 367 U.S. 497, 542-543 (1961) four
years earlier gains ascendency. Justice Harlan had enumerated the right to bear
arms among other rights in the first eight amendments. (Poe
at 542-543) A
concurring opinion by Justice Goldberg (joined by The Chief Justice Warren and
Justice Brennan), while noting the fourteenth amendment had not been applied to
the entire Bill of Rights (continued to be applied over the following years),
repeatedly refers to the first eight amendments in terms of "fundamental rights"
490, 491, 492) or
"fundamental personal liberties" (P. 493). This is
similar to Patton v. United States, 281 U.S. 276 (1929) where the
majority opinion noted "the first ten amendments should be construed in pari
materia." (Patton at 298) The Court has
made similar observations in Dred Scott v. Sandford, 60 U.S. 393, 417, 450-451 (1857);
Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897), and
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]
GRISWOLD et al. v. CONNECTICUT.
APPEAL FROM THE SUPREME COURT OF ERRORS OF
No. 496. Argued March 29-30, 1965.--Decided June 7,
Appellants, the Executive Director of the Planned
Parenthood League of Connecticut, and its medical director, a licensed
physician, were convicted as accessories for giving married persons information
and medical advice on how to prevent conception and, following examination,
prescribing a contraceptive device or material for the wife's use. A Connecticut
statute makes it a crime for any person to use any drug or article to prevent
conception. Appellants claimed that the accessory statute as applied violated
the Fourteenth Amendment. An intermediate appellate court and the State's
highest court affirmed the judgment. Held:
1. Appellants have standing to assert the
constitutional rights of the married people. Tileston v.
Ullman, 318 U.S. 44, distinguished. P. 481.
2. The Connecticut statute forbidding use of
contraceptives violates the right of marital privacy which is within the
penumbra of specific guarantees of the Bill of Rights. Pp. 481-486.
151 Conn. 544, 200 A.2d 479,
Thomas I. Emerson argued the cause for
appellants. With him on the briefs was Catherine G. Roraback.
Joseph B. Clark argued the cause for
appellee. With him on the brief was Julius Maretz.
Briefs of amici curiae, urging reversal,
were filed by Whitney North Seymour and Eleanor M. Fox for Dr.
John M. Adams et al.; by Morris L. Ernst, Harriet F. Pilpel and
Nancy F. Wechsler for the Planned Parenthood Federation of America, Inc.;
by Alfred L. Scanlon for the Catholic Council on Civil Liberties, and by
Rhoda H. Karpatkin, Melvin L. Wulf and Jerome E. Caplan for
the American Civil Liberties Union et al.(p.480)
Mr. Justice Douglas
delivered the opinion of the Court.
Appellant Griswold is Executive Director of the Planned Parenthood
League of Connecticut. Appellant Buxton is a licensed physician and a professor
at the Yale Medical School who served as Medical Director for the League at its
Center in New Haven--a center open and operating from November 1 to November 10,
1961, when appellants were arrested.
They gave information, instruction, and medical advice to married
persons as to the means of preventing conception. They examined the wife
and prescribed the best contraceptive device or material for her use. Fees were
usually charged, although some couples were serviced free.
The statutes whose constitutionality is involved in this appeal are
§§ 53-32 and 54-196 of the General Statutes of Connecticut (1958
rev.). The former provides:
"Any person who uses any drug, medicinal article
or instrument for the purpose of preventing conception shall be fined not less
than fifty dollars or imprisoned not less than sixty days nor more than one
year or be both fined and imprisoned."
Section 54-196 provides:
"Any person who assists, abets, counsels,
causes, hires or commands another to commit any offense may be prosecuted and
punished as if he were the principal offender."
The appellants were found guilty as accessories
and fined $100 each, against the claim that the accessory statute as so applied
violated the Fourteenth Amendment. The Appellate Division of the Circuit Court
affirmed. The Supreme Court of Errors affirmed that judgment. 151
Conn. 544, 200 A.2d 479. We noted probable jurisdiction. 379 U.S. 926.(p.481)
We think that appellants have standing to raise the constitutional
rights of the married people with whom they had a professional relationship.
Tileston v. Ullman, 318 U.S. 44, is different, for
there the plaintiff seeking to represent others asked for a declaratory
judgment. In that situation we thought that the requirements of standing should
be strict, lest the standards of "case or controversy" in Article III of the
Constitution become blurred. Here those doubts are removed by reason of a
criminal conviction for serving married couples in violation of an
aiding-and-abetting statute. Certainly the accessory should have standing to
assert that the offense which he is charged with assisting is not, or cannot
constitutionally be, a crime.
This case is more akin to Truax v. Raich, 239
U.S. 33, where an employee was permitted to assert the rights of his
employer; to Pierce v. Society of Sisters, 268 U.S.
510, where the owners of private schools were entitled to assert the
rights of potential pupils and their parents; and to Barrows v.
Jackson, 346 U.S. 249, where a white defendant, party to a racially
restrictive covenant, who was being sued for damages by the covenantors because
she had conveyed her property to Negroes, was allowed to raise the issue that
enforcement of the covenant violated the rights of prospective Negro purchasers
to equal protection, although no Negro was a party to the suit. And see Meyer v. Nebraska, 262 U.S. 390; Adler v.
Board of Education, 342 U.S. 485; NAACP v.
Alabama, 357 U.S. 449; NAACP v. Button, 371 U.S.
415. The rights of husband and wife, pressed here, are likely to be
diluted or adversely affected unless those rights are considered in a suit
involving those who have this kind of confidential relation to them.
Coming to the merits, we are met with a wide range of questions that
implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some
arguments (p.482)suggest that Lochner v. New York, 198 U.S. 45, should be our guide. But
we decline that invitation as we did in West Coast Hotel Co. v.
Parrish, 300 U.S. 379; Olsen v. Nebraska, 313
U.S. 236; Lincoln Union v. Northwestern Co., 335
U.S. 525; Williamson v. Lee Optical Co., 348 U.S.
483; Giboney v. Empire Storage Co., 336 U.S.
490. 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. This law, however, operates directly on an intimate relation of
husband and wife and their physician's role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor
in the Bill of Rights. The right to educate a child in a school of the parents'
choice--whether public or private or parochial--is also not mentioned. Nor is
the right to study any particular subject or any foreign language. Yet the First
Amendment has been construed to include certain of those rights.
By Pierce v. Society of Sisters, supra, the right to
educate one's children as one chooses is made applicable to the States by the
force of the First and Fourteenth Amendments. By Meyer v. Nebraska,
supra, the same dignity is given the right to study the German language
in a private school. In other words, the State may not, consistently with the
spirit of the First Amendment, contract the spectrum of available knowledge. The
right of freedom of speech and press includes not only the right to utter or to
print, but the right to distribute, the right to receive, the right to read
(Martin v. Struthers, 319 U.S. 141, 143) and freedom
of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S. 183, 195)--indeed the
freedom of the entire university community. Sweezy v. New
Hampshire, 354 U.S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U.S. 109, 112; Baggett v. Bullitt, 377 U.S. 360, 369. Without (p.483)those peripheral rights the specific rights
would be less secure. And so we reaffirm the principle of the Pierce and
the Meyer cases.
In NAACP v. Alabama, 357 U.S. 449, 462,
we protected the "freedom to associate and privacy in one's associations,"
noting that freedom of association was a peripheral First Amendment right.
Disclosure of membership lists of a constitutionally valid association, we held,
was invalid "as entailing the likelihood of a substantial restraint upon the
exercise by petitioner's members of their right to freedom of association."
Ibid. In other words, the First Amendment has a penumbra where privacy is
protected from governmental intrusion. In like context, we have protected forms
of "association" that are not political in the customary sense but pertain to
the social, legal, and economic benefit of the members. NAACP
v. Button, 371 U.S. 415, 430-431. In Schware v.
Board of Bar Examiners, 353 U.S. 232, we held it not permissible to
bar a lawyer from practice, because he had once been a member of the Communist
Party. The man's "association with that Party" was not shown to be "anything
more than a political faith in a political party" (id., at
244) and was not action of a kind proving bad moral character. Id., at 245-246.
Those cases involved more than the "right of assembly"--a right that
extends to all irrespective of their race or ideology. De Jonge
v. Oregon, 299 U.S. 353. The right of "association," like the right
of belief (Board of Education v. Barnette, 319 U.S.
624), is more than the right to attend a meeting; it includes the right
to express one's attitudes or philosophies by membership in a group or by
affiliation with it or by other lawful means. Association in that context is a
form of expression of opinion; and while it is not expressly included in the
First Amendment its existence is necessary in making the express guarantees
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. See Poe v. Ullman, 367 U.S. 497, 516-522
(dissenting opinion). Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one, as we have
seen. The Third Amendment in its prohibition against the quartering of soldiers
"in any house" in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the "right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth Amendment
provides: "The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."
The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, as protection
against all governmental invasions "of the sanctity of a man's home and the
privacies of life."[484.*] We recently referred (p.485)in Mapp v. Ohio, 367 U.S. 643,
656, to the Fourth Amendment as creating a "right to privacy, no less
important than any other right carefully and particularly reserved to the
people." See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct.
Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U.L. Rev. 216 (1960).
We have had many controversies over these penumbral rights of
"privacy and repose." See, e.g., Breard v.
Alexandria, 341 U.S. 622, 626, 644; Public Utilities
Comm'n v. Pollak, 343 U.S. 451; Monroe v. Pape,
365 U.S. 167; Lanza v. New York, 370 U.S.
139; Frank v. Maryland, 359 U.S. 360; Skinner v. Oklahoma, 316 U.S. 535, 541. These cases bear
witness that the right of privacy which presses for recognition here is a
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." NAACP v. Alabama, 377 U.S. 288, 307. Would we allow the
police to search the sacred precincts of marital bedrooms for telltale signs of
the use of contraceptives? The (p.486)very idea
is repulsive to the notions of privacy surrounding the marriage
We deal with a right of privacy older than the Bill of Rights--older
than our political parties, older than our school system. Marriage is a coming
together for better or for worse, hopefully enduring, and intimate to the degree
of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any involved
in our prior decisions.
Mr. Justice Goldberg, whom
The Chief Justice and Mr. Justice
Brennan join, concurring.
I agree with the Court that Connecticut's birth-control law
unconstitutionally intrudes upon the right of marital privacy, and I join in its
opinion and judgment. Although I have not accepted the view that "due process"
as used in the Fourteenth Amendment incorporates all of the first eight
Amendments (see my concurring opinion in Pointer v. Texas,
380 U.S. 400, 410, and the dissenting opinion of Mr.
Justice Brennan in Cohen v. Hurley, 366 U.S. 117,
154), I do agree 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. My conclusion that the concept of liberty is not so restricted
and that it embraces the right of marital privacy though that right is not
mentioned explicitly in the Constitution[486.1]
is supported both by numerous (p.487)decisions
of this Court, referred to in the Court's opinion, and by the language and
history of the Ninth Amendment. In reaching the conclusion that the right of
marital privacy is protected, as being within the protected penumbra of specific
guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante, at 484. I add these
words to emphasize the relevance of that Amendment to the Court's holding.
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." Snyder v.
Massachusetts, 291 U.S. 97, 105. In Gitlow v. New
York, 268 U.S. 652, 666, the Court said:
"For present purposes we may and do assume that
freedom of speech and of the press--which are protected by the First Amendment
from abridgment by Congress--are among the fundamental personal
rights and 'liberties' protected by the due process clause of the Fourteenth
Amendment from impairment by the States." (Emphasis added.)
[Currrently at pages 479-487.
Proceed to pages 488-493.
Proceed to pages
[484.*] The Court said in full about this right of privacy:
"The principles laid down in this opinion [by
Lord Camden in Entick v. Carrington, 19 How. St. Tr.
1029] affect the very essence of constitutional liberty and security.
They reach farther than the concrete form of the case then before the court,
with its adventitious circumstances; they apply to all invasions on the part
of the government and its employes of the sanctity of a man's home and the
privacies of life. It is not the breaking of his doors, and the rummaging of
his drawers, that constitutes the essence of the offence; but it is the
invasion of his indefeasible right of personal security, personal liberty and
private property, where that right has never been forfeited by his conviction
of some public offence,--it is the invasion of this sacred right which
underlies and constitutes the essence of Lord Camden's judgment. Breaking into
a house and opening boxes and drawers are circumstances of aggravation; but
any forcible and compulsory extortion of a man's own testimony or of his
private papers to be used as evidence to convict him of crime or to forfeit
his goods, is within the condemnation of that judgment. In this regard the
Fourth and Fifth Amendments run almost into each other." 116
U.S., at 630.
[486.1] My Brother Stewart dissents on
the ground that he "can find no ... general right of privacy in the Bill of
Rights, in any other part of the Constitution, or in any case ever before
decided by this Court." Post, at 530. He would
require a more explicit guarantee than the one which the Court derives from
several constitutional amendments. This Court, however, has never held that the
Bill of Rights or the Fourteenth Amendment protects only those rights that the
Constitution specifically mentions by name. See, e.g., Bolling v. Sharpe, 347 U.S. 497; Aptheker
v. Secretary of State, 378 U.S. 500; Kent v.
Dulles, 357 U.S. 116; Carrington v. Rash, 380
U.S. 89, 96; Schware v. Board of Bar Examiners, 353
U.S. 232; NAACP v. Alabama, 360 U.S. 240;
Pierce v. Society of Sisters, 268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390. To the contrary, this
Court, for example, in Bolling v. Sharpe, supra, while recognizing
that the Fifth Amendment does not contain the "explicit safeguard" of an equal
protection clause, id., at 499, nevertheless derived
an equal protection principle from that Amendment's Due Process Clause. And in
Schware v. Board of Bar Examiners, supra, the Court held that the
Fourteenth Amendment protects from arbitrary state action the right to pursue an
occupation, such as the practice of law.