Thursday, October 24, 2002

Before Roe v. Wade, There Was:


Got a great letter from THE AMERICANIST summarizing the 1965 Griswold decision. He says that you can't really understand Roe v. Wade without understanding Griswold.

First, a caveat from TA: I'm not a lawyer, never practice law, have no knowledge of the law, fear lawyers, love lawyers, think lawyers ought to be exempt from gravity, and will happily agree that they are right and I am wrong whenever challenged. (uh-huh)

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Griswold is a 1965 Supreme Court decision that is the immediate important precedent for Roe v Wade. A Connecticut law forbid contraception -- 'any drug, medicinal article, or instrument' -- and extended that to include anybody who ADVISED folks about contraception. Griswold himself was the Planned Parenthood director in Connecticut, advising married people how to hav sex without pregnancy, and off they went. The Supremes threw out the Connecticut statute, and American law on sexual matters has been different ever since.

Whatever ya think of him, Justice William O. Douglas's majority opinion is a true intellectual feat. I think of it sorta like I think of calculus or trigonometry -- I know it exists, and it must work (Griswold has been Constitutional law for nearly forty years), but I have no real understanding HOW. Conservative legal scholars (and of course pro-lifers, including the Church) scoff at Griswold as well as Roe -- but almost NOBODY actually challenges Griswold, including the Church. Which piques my interest -- it's like walking the guy up first, IN ORDER to pitch to Barry Bonds.

Basically, speaking for the majority, Douglas legalized contraceptives by finding "that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." (A "penumbra" is the focus within a shadow, typically the place on the earth where a total eclipse occurs; "emanations" refers to the way scent moves out from a flower.) From that, he derived an explicit rationale for a CONSTITUTIONAL right to privacy... "lying within the zone of privacy created by several fundamental constitutional guarantees."

Douglas argued that the Fourth and Fifth amendments (against unreasonable searches and self-incrimination) provide these zones of privacy, noting an 1886 case which protected "the sanctity of a man's home and the privacies of life." Then he went on to argue: "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 a coming togther for better or for worse, hopefully enduring, and intimate to the degree of being sacred... and association for as noble a purpose as any involved in our prior decisions."

Thus defending marriage itself as well as the sanctity of marital privacy, the Court legalized contraceptives in 1965. Some years later, Roe built on that right to privacy, establishing the right to an abortion.

I bring all this up on Amy's site, because I keep asking folks for a fact situation that could raise a legal principle -- ANY legal principle -- to overturn Roe without also eroding, if not erasing, Griswold. I don't think there IS any, as a matter of Constitutional law. Man, I get flamed for it.

Likewise, I've spent a lot of time (and taken enormous flack) regarding Humanae Vitae and ITS precedents, going back all the way to Augustine, which (not to put too fine a point on it) are profoundly misogynist, anti-erotic, and authoritarian, based on what I consider a more or less obvious inaccuracy: the notion that the unitive and procreative functions can NOT be morally separate. I think that happens all the time (and I have much trouble saying so in a genteel manner; use your imagination). LOL -- a very private matter.

But it is relevant, because if ya can't overturn Roe without eroding Griswold, the more widely you consider Catholic teaching on sexuality, the shakier it gets.

Anyhow, more than ya wanted to know, I'm sure. But -- now you do.
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