Fifty years ago this week, the Supreme Court held that the Constitution did not permit a state to prohibit the use of contraceptives within marriage or the provision of contraceptives to married people. Finding a “zone of privacy created by several fundamental constitutional guarantees,” the majority concluded that the contraception bans unconstitutionally intruded on marriage, which the Court described as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Seven years later, in Eisenstadt v. Baird, the Court extended the constitutional right to use birth control to unmarried couples.
By guaranteeing legal access to birth control, the Griswold decision opened the door for dramatic changes for women and for our society. As the Supreme Court has since observed, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” In fact, research has shown that availability of reliable birth control has been a key driver of the increases in U.S. women’s education, labor force participation, average earnings, and the narrowing in the wage gap between women and men achieved over recent decades.
Given the profound importance of the availability of contraception to women’s health and women’s opportunities, it is notable that the Griswold majority nowhere mentioned the word “woman” or “women.” Neither did the word “gender” or “sex” make an appearance. And while the opinion for the Court relied on the First Amendment, the Third Amendment, the Fourth Amendment, and the Fifth Amendment in finding a constitutional right to be let alone and a right of intimate association that included the right to use contraception, the majority made no reference to the equality guarantee of the Fourteenth Amendment in striking down Connecticut’s birth control ban.
In some ways this is not surprising. The Supreme Court had not yet held that the Equal Protection Clause of the Fourteenth Amendment provided meaningful protection against sex discrimination and would not do so for another six years. In other ways, however, Griswold’s failure to recognize that men and women are not similarly situated when it comes to contraception makes for a very strange decision, which talks about the nature of marriage, but nowhere notes the disparate consequences of unintended pregnancy for married women and married men. Even more importantly, in the years since, the failure of the Supreme Court to consistently recognize that women’s control over reproductive decision making is central to women’s equality has allowed women’s reproductive rights to be undermined.
Justice Kennedy’s majority opinion in Gonzales v. Carhart in 2007 provides a prime example of how ignoring women’s right to be treated as full and equal members of society has led to weakening of protection for reproductive rights. In holding a federal ban on a specific method of abortion to be constitutional, the opinion reasoned that the ban served an important purpose in protecting women who had abortion, who might later come to regret it, and who, the Court hypothesized, must “struggle with grief more anguished and sorrow more profound” if they learned the details of the particular abortion procedure that Congress had prohibited. That is, the Gonzales decision suggested that the procedure was appropriately banned for women’s own good, to protect them from the consequences of their own actions. As Justice Ginsburg noted in dissent, “This way of thinking reflects . . . ideas that have long since been discredited.” The rationale and result in Gonzales served to undermine not only privacy rights to make one’s own decision, but women’s equality.
But interestingly, the same Justice Kennedy who wrote the majority decision in Gonzales has recognized in another context that equality and the personal liberty protected by the privacy right recognized in Griswold are closely connected. In Lawrence v. Texas, in which the Court found that criminalization of sexual relations between same-sex couples violated privacy rights protected by the Due Process Clause, Justice Kennedy wrote, “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects.” Lawrence recognizes what Gonzales failed to see: that failure to protect the intimate decisions central to individuals’ identity invites discrimination against those individuals. Women’s equality and women’s ability to make decisions about whether and when they have children are two sides of the same coin.
In the coming weeks, the Court will decide whether the Constitution protects same-sex couples’ right to marry. In an echo of Griswold, the Court will again explore the constitutional dimension of the intimacy of marriage and may well take the opportunity to address how the equal protection guarantee is closely entwined with the liberty rights to make intimate decisions that Griswold called “privacy.” Recognizing those linkages has profound implications ― both for the rights of LGBT people and for women’s equality.