by Emily J. Martin, Vice President and General Counsel, National Women’s Law Center
*This post is part of ACSblog’s symposium honoring the 50th anniversary of Griswold v. Connecticut.
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.