We all need a break from the constant cycle to learn something new, to gain new perspectives. The Great Courses Plus streaming service is an excellent resource to expand our knowledge on a variety of subjects or pick up a new hobby. I've been enjoying the Great Courses Plus while researching this season of flashback lectures like Playball, the Rise of Baseball is America's pastime, History of the Supreme Court, and Battlefield Europe have helped me connect the dots on
several stories from history. Right now, they're giving our listeners a special limited time offer a free month of unlimited access to their entire library. Sign up now through our special U r L go to the Great Courses Plus dot Com slash as that's the Great Courses Plus dot Com slash o z y the Great Courses Plus dot Com slash. Aussie March, the United States was in the middle of a massive civil rights movement, but the U. S. Supreme Court was hearing a challenge to a law that
was almost a century old. The case was called Griswold versus Connecticut. It concerned a ban on the use of all contraception in the state of Connecticut, even by married couples, and the lawyers attempting to defend the law that made it a crime to use birth control, Well, they had their work cut out for them. During oral arguments, Supreme Court Justice Potter Stewart grilled one of those lawyers about the purpose of that contraception ban. Well, now, what purpose?
What is the police power? Purpose of Connecticut and telling married people, two people who were married to each other, that they could not use contraceptive The attorney responded that the purpose was to preserve morality. What kind of morality? What? What? What? What moral purposes? Well, it is not unheard of that the use of contraceptives themselves would be immoral. Certainly. He goes on from there, and the attorney kept digging himself
a bigger hole. It was a tough task. He was trying to defend the somewhat archaic law with appeals to contemporary morality. You see, by nine only two states, including Connecticut, still outlawed contraception. Meanwhile, almost three quarters of the American public approved of making birth control available. The Connecticut ban was, as Justice Stewart himself put it, an uncommonly silly law. So what's the problem? The U S Supreme Court had
no obvious way to do anything about it. There's nothing in the U. S. Constitution that directly addresses contraception, reproductive health, or family planning, so there's a less than solid legal rationale to overturn the Connecticut law. However silly it might have seemed, So what did the court do? They made one up, and that instance of judicial creativity had has affected the course of American law and politics for more than half a century. Welcome to Flashback, a podcast from Azzie.
I'm Sean Braswell. This season of Flashback is all about unintended consequences, and in this episode we explore the often uneasy relationship between law and politics, between morality and a changing society. We'll see how the efforts to overturn a silly law led to an unexpected revolution, one that has had its own unintended consequences today. The years following the Civil War were a busy time in America, especially for
social reformers. This is John Johnson, an emeritus professor of history from the University of Northern Iowa and the author of Griswold v. Connecticut, Birth Control and the Constitutional Right of Privacy. This was a very total period for reform from about eighteen seventy to nineteen or so, and the reform cut in many directions. Anti slavery reformers were looking for new causes after the war to pour their energy into.
There was women's suffrage and voting rights prohibition, and within this context you have what you might call the conservative Comstock Laws. They were named after a prominent reformer named Anthony Comstock, a veteran of the Union Army. And Anthony Comstock was an interesting guy. He did not have an elective position. He was sort of a an activist. Comstock was a deeply religious man who had moved to New York City after the war. He was outraged at the
vice he encountered, their saloons, flop houses, brothels. He also didn't like the sending of what he considered immoral and salacious material through the mail. This included pornography, obscene drawings and more. And in this so called immoral literature he included advocacy for birth control. Believe it or not, in the eighteen seventies, contraception was a controversial matter in America. It was religiously frowned upon, particularly in states like Connecticut,
with a strong and Catholic population. So Comstock quits his job selling dry goods and convinces the New York Y m c A to support his full time one man crusade to bolster obscenity laws across the nation. He called his new outfit the New York Society for the Suppression of Vice, and it worked. Comstock convinced Congress to pass the Comstock Act in eighteen seventy three. A number of states passed their own Comstock laws restricting the use and
distribution of birth control. Anthony Comstock even convinced Congress to appoint him as a Special Inspector of the Post Office so that he could ferret out of scene material eels. He conducted his own raids. The first year, he traveled over twenty three thousand miles across the country and sees over sixty tho condoms and diaphragms. He was the elliott Ness of birth control. But not many Americans were as
enthusiastic about following the new law as Comstock was. The laws themselves, which were the product of the culture, probably didn't have a whole lot of deterred effect. Over the next half century, most states repealed their Comstock laws. More than sevent of Americans supported birth control, and only two states, Connecticut and Massachusetts, still had the laws on the books.
In Connecticut, many attempts at repealing the state's Comstock law were made, and I think there were over twenty attempts, but the resistance, particularly of the Roman Catholic Church in Connecticut, was determinative in keeping the laws on the books, and they succeeded at least until the Church and almost a century of legal and political inertia, met one very determined woman. She was a very talented lady. She was a singer, and for her early adulthood she spent time in France.
In nineteen fifty, the clerical worker and medical technologist named to Stell Griswold moved to New Haven, Connecticut with her husband. She was a small woman, vivacious, she described as feisty. They had returned home to Connecticut because Griswold's mother was ill, and by pure chance turned out that she and her husband lived literally right next door to the Planned Parenthood League of Connecticut, and the position of executive director happened
to be open. So the fifty year old Griswold applied, but she didn't know anything. By her own testimony, she didn't know much about birth country role. I don't think she had even seen a diaphragm when she interviewed for the job. Griswold got the job, and she immediately discovered how challenging it would be. Connecticut's Comstock law was the most restrictive in the country. It made using contraception at crime and prohibited groups like Planned Parenthood from distributing it
or recommending it. This is Mary Ziggler, a law professor at Florida State University and the author of the brand new book Abortion and the Law of America. But Connecticut was pretty much alone at the time in preventing married couples from even using first controls. This was still the nineteen fifties, before the birth control pill. The diaphragm was the most commonly prescribed form of contraception at the time.
Some called it quote the rich woman's secret. The Connecticut legislature would not repeal the law, and to get the courts to address it required a lawsuit. The only problem was the Connecticut law wasn't really being enforced, so to get Griswold to the court required more than just a law that still Griswold thought was unconstitutional. It also required some kind of ingenuousness when it came to getting arrested in trouble, showing that this law actually had some kind
of teeth. So in nineteen sixty one, Griswold and a colleague, ductor Lee Buxton, decided they would try to test the law. Griswold announced publicly that her clinic would start providing contraceptive services to married women. This is a stell, Griswold in a nineteen sixty two interview with CBS News, describing the situation, Well, I think it's very evident that the allow is unenforceable.
I think if you had a policeman under every bed in the state of Connecticut, they still could not prove anything. John Johnson again, and so they began to advertise that birth control was being practiced and advice was given in the facility in New Haven, Connecticut. They literally called upon the police to arrest a steal Griswold. A neighbor of Griswold's named James Morris, filed the complaint. Morris was a Catholic and the night manager at a rental car agency.
He told local prosecutors quote every moment that clinic stays open, another child is not born. CBS News interviewed Morris in nineteen sixty two as well against birth control because it's immoral. It's the same as prostitution or abortion or in any other than those I moral things. Of course, getting arrested is just what is Stelle Griswold and Lee Buxton wanted arrest. Warrants were issued and Griswold dressed in her Sunday best
surrender to authorities that the agreed upon time. So two detectives showed up, and apparently Steal was very happy to see them, and they had a very cordial conversation. Griswold and Buxton were arrested, and a court found them guilty and imposed a one fine. The case was appealed and eventually went to the Connecticut Supreme Court and then the
United States Supreme Court. Chris Wald finally had her chance to end the stubborn Connecticut law once and for all, but her case would wind up doing so much more than just that. That's next. Do you have an interesting tale about unintended consequences from history or your own life, Please share it with us By emailing flashback at Aussie dot com. That's flashback at o Z e y dot com. Not one of the nine men sitting on the U. S. Supreme Court thought that Connecticut's ban was a sensible law.
John Johnson. This was considered sort of archaic and demeaning, and it was crudely drawn, and it was ninety years old. So it was a question of what grounds with the Supreme Court find to rule the law and constitutional. Chief Justice Earl Warren assigned the opinion in the case to Justice William O. Douglas. The sixty six year old Douglass was from Washington State and had been on the Court for over a quarter century. He was a world traveler
and an outdoorsman. He was not your average Supreme Court justice. No. For everybody's abridge guessing game, What My Mine? This was a popular fifties game show. The contestants were blindfolded and asked to guess the identity of a mystery celebrity guest. One of those guests was Justice Douglas. This is a gentleman. Yes, do you work? Do you work for profit making organization? No? Justice Douglas was also something of a ladies man, sometimes
known as wild Bill. He was the first Supreme Court justice to have been divorced, and not just once three times. The year after the Griswold decision, he would marry his fourth wife. She was twenty three years old. Needless to say, many of the clerks on the Court felt it to be deeply ironic that the justice with numerous extra marital affairs was to be the one in Griswold given the task of upholding the right to privacy in the sanctity of the marital bedroom. Douglas wrote the first draft of
the Court's opinion in less than a week. It was six pages, handwritten, double spaced on a yellow legal pad. When his draft was circulated to the other chambers of the Court, the clerks and other justices were shocked at how thin it was. The legal argument left a little to be desired as well. What Justice Douglas would ultimately right is that the Connecticut law violated the right of privacy of Stale Griswold. The Court had never explicitly found
a right to privacy in the Constitution. What Douglas did was in some ways very creative, in other ways that his critics said he was very sloppy, Douglas argued in his opinion that the Connecticut law quote violates the right of marital privacy, which is within the p number of specific guarantees of the Bill of Rights, and these pannumbra are these emanations sort of cast a privacy shadow. So it is a really important case for a couple of reasons.
April Dawson is a constitutional law professor at North Carolina Central University School of Law. One uh the court specifically found a right to privacy and the marital relations and concluded that the state could not restrict a married couple's ability to be counseled on and use contraceptives. But more broadly, it's important because the court for the first time really explicitly found a right to privacy in the Constitution, even though the right to privacy is not explicitly stated within
the text of the Constitution. The court delivered its opinion to the public on June seven, the day before Estelle Griswold's sixty five birthday. Near the end of the majority opinion, the thrice divorced Douglas opined about the sanctity of marriage. Marriage is a coming together for better or worse, hopefully enduring an 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. It is an association for as noble a purpose as any involved in our prior decisions. It was a beautiful sentiment, and in the years after Griswold he would often hear that passage read aloud at wedding ceremonies across the country, and so for the first time in nearly a century, Connecticut spouses engaged in legal protected sex, and the right to privacy was born in America. Meanwhile, the Stelle Griswold did
what so many older Northerners did at the time. She retired to an air conditioned home in Fort Myers, Florida, where she lived until her death in But the controversy surrounding the Griswold case began before the ink on the opinion was even dry. The critics would say, well, it may be very important, but it's not grounded in the U. S. Constitution, And it was an easy decision to criticize if you
didn't like the analysis of Justice Douglas. For many, the ends of eliminating an uncommonly silly law did not justify the Warren Court's judicial means for doing so. If you agreed with the Warren courts leanings, you were willing to accept the decision. If you were critical of the Warrant Court for going too far, you saw this as a sloppy decision that created a right that it wasn't clearly there. This is Daniel Ermine, a constitutional law scholar at the
Northeastern School of Law. Griswald is the beginning, but certainly not the end, of a huge debate over whether unspoken or what lawyers call unenumerated rights get protection in the Constitution. No one knew right after Griswold quite what the consequences of this broad legal right would be. Mary Ziggler again, one of the questions coming out of Griswold was how broad the s right to privacy reached? Pretty far, as
it turned out. Eight years after Griswold, the Supreme Court announced another big decision, good evening and a landmark ruling. The Supreme Court today legalized abortions. The majority and cases from Texas and Georgia said that a decision to end up pregnancy during the first three months belongs to the woman and her doctor, not the government. Well, Roe versus Wade is just a bomb that went off in terms
of constitutional law. This is Mark Kindy, the law professor at Drake Law School and the director of the Drake
Constitutional Law Center. In the famous case of Roe v. Wade, the U. S. Supreme Court found the right to privacy identified in Griswold applied in other family planning circumstances, and when it got to abortion, they found that although there were certainly an interest the state had in the feat is at the end of the day, that right to privacy that an individual woman has with regard to what happens to her body is something that exists. It's a
fundamental constitutional right. The decision in Row was immediately polarizing. CBS News captured the opposing viewpoints on the day the ruling was handed down. This is Dr Alan Gutmacher of Planned Parenthood on that broadcast. I think that to raid the dignity dear woman and give her freedom of choice in this area his extraordinary event. And I think that January nineteen seventy there would be an historic day. And on the other side, James McK a priest with the U. S.
Catholic Conference. In this instance, the Supreme Court has withdrawn protection for the human rights of unborn children, and it is teaching people that abortion is a rather innocuous procedure, provided that there are proper legal safeguards. These strongly held opposing views on abortion have now defined American political culture for nearly half a century, and the right to privacy found in Griswold has been extended to areas beyond just abortion.
Mark Kendy, you know what happened after Rowe was basically the Court actually continued to find this right to privacy to be even broader. Some of these extensions to privacy are favored by liberals, such as the Court's recent protection of gay marriage, and some push in a more conservative direction. Certainly, you know, parents claim rights to be able to do
things like homeschooling of their children. They claim rights to be able to sometimes pull their children from public schools when it comes to the point where public schools engage in sex education. So it encompasses parental rights, it encompasses medical care, and it even you know, touches on religious issues.
The century long reaction to the Comstock Laws of the nineteenth century illustrates how legislative overreach can backfire to create rights that would have shocked the original proponents of a law. Just think, how would the Chase crusader Anthony Comstock have felt if he knew his labors would have ultimately resulted in legalized abortion? But can the same be said of the Griswold case. Up next, a look at some of
the crazy, unexpected consequences unleashed by Griswald's privacy revolution. Enjoying this episode, check out the Great Courses Plus streaming service. It's an excellent resource to expand our knowledge on a variety of subjects, like the establishment by the Supreme Court of the right to privacy. In researching this episode of Flashback, I dove deep into the lectures, history of the Supreme
Court and law school for everyone constitutional law. With the Great Courses Plus app, we can keep our minds active, escape into this vast world of information. Watch or listen at any time anywhere. Right now, they're giving our listeners a special, limited time offer, a free month of unlimited access to their entire library. Sign up now through our special U r L go to the Great Courses Plus dot com slash AUSI that's the Great Courses plus dot Com slash o z y, the Great Courses plus dot
Com slash AUSI. These days, Griswold v. Connecticut is not all that controversial, Mary Ziggler. But Griswold itself has become what lawyers called part of the legal canon, in the sense that you can't really say Griswold was wrong anymore. But there's one place that Griswold and the still controversial Roe v. Wade decision continue to get raised. Daniel Rman Again.
The debates that occurred in grizz Wald and Roe v. Wade set the stage for an entire generation of Supreme Court confirmation hearings, and few hearings went by without a senator questioning the Supreme Court nominee about his or her views on the right to privacy established in Griswold. It really was the centerpiece of Robert Bork's confirmation hearing during the summer of Robert Bork was an outspoken conservative jurist.
During the hearing, you can hear the subtle disdain he had for Justice Douglas's opinion in gris Wald and Justice Douglas entered ended that opinion with a rather uh eloquent statement of how awful it would be to have the police pounding into the marital bedroom. And it would be awful, and it would never happen because there is a Fourth Amendment and the police simply could not get into the
bedroom without a warrant. What magistrate is going to give the police a warrant to go into search for signs of use of contraceptives. I mean, it's a holy it's a holy, bizarre and imaginary case. Now let me say this, yeld at that point, just for classification, do you recognize that second voice? Hint, it's a balding senator from the state of Delaware who is currently the Democratic nominee for president.
And there's a famous exchange between the young chairman of the Judiciary Committee, Joe Biden, and Robert Burke about the implicate patitions of Burke's view that there is not a fundamental right to marital privacy or the right to contraception. That was that issue in Griswold. If they had evidence of the crime was being committed, how are they going to get evidence that a couple of tap, wire tap, wire tap, you mean to say that is going to authorize a wire tap to find out of a couple
of using contraceptives. They unbelievable, unbelievable. Things changed a bit after the Senate refused to confirm Bork. After Bork was voted down, You've just had a series of nominees by both parties who have said Row v. Wade is precedent, and they have given platitudes that would make most first year law students blush. And that continues to this day. I said that it's settled as a precedent of the Supreme Court, entitled to respect under principles of starry decisives.
That's Brett Kavanagh, the last Supreme Court justice to be confirmed in his Senate hearing. One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past forty five years. As you know, even if Supreme Court nominees won't go near abortion or the right to privacy, it has become a hot button political issue, especially on the right.
Mark Kindy, It's just extraordinary how influential it's been in terms of energizing the Republican Party, for example, especially evangelicals within the Republican Party. Daniel Irmin again Roe v. Wade generated a politically powerful right to life movement that has been with us since the nineteen seventies and has profoundly affected national politics ever since. And it has impact did
the political sphere more than you would think. We know that in two thousand eight, Roe v. Wade determined John McCain's choice of a vice presidential nominee. He wanted to choose Joe Lieberman as a unity ticket, and he got the news that every state Republican party chair would boycott the convention and not endorse him. He ended up picking Sarah Palin, who was known for being against Roe v. Wade,
and we all know how that turned out. But it was the steen US presidential election where the abortion and right to privacy issue really had the biggest political impact. In exit polls told us that about twent of voters thought the Supreme Court was a very important factor in their vote, and of those voters, it was about six
to four Trump versus Clinton. So if you do the math and you remember that Trump won the electoral College because of narrow victories in Wisconsin, Michigan, and Pennsylvania, I think you can make a straightforward case that concern about the Supreme Court and whether it would eventually overturn Roe v. Wade. And the Trump presidency may have delivered his electoral college victory and the Supreme Court will soon have an opportunity
to overturn or limit Roe v. Wade. April Dawson's So, the Supreme Court is currently deciding a case right now June Medical Services, the RUSSO, and this is a case that's challenging a Louisiana law that requires physicians who perform abortions to have admitting privileges at local hospitals. Mark Kindy, there's a really good chance this court, which is considered rather conservative, might say the Louisiana law that requires these clinics to be like many hospital, well that's not a
big burden. But the problem is that law will probably drive a bunch of these clinics out of business. And so what's going to happen is it's going to be much harder for women to be able to get abortions. But if Roe v. Wade were to be overturned, there
is much more at stake than just abortion rights. In order for Road to be overturned, the Court would pretty much have to reach a conclusion that there is not a right to privacy expressed within the Constitution, and that would undermine all of the other decisions by the Court that that are based on the right to privacy. This could have huge legal implications for both sides of the political aisle. Obviously, the pro choice side, which tends to
be liberal, would be upset. But one of the unintended consequences is that it could infect rights that conservatives think are very important. And so if you get rid of this right to privacy as part of getting rid of the right to abortion, ironically, you don't just burden potentially people who support abortion, but you may burden people who oppose abortion. But you may burden what you might call
conservative rights. So what are we to make of this whole crazy legal back and forth from Comstock to Griswold to the election and beyond Daniel Rman again, So big picture, I actually like to quote Ruth Bader Ginsburg and she says a lot of people think that the American symbol is the eagle, but she actually prefers the pendulum, the ideas that American law and politics tend to swing back and forth. Sometimes that is in the form of a backlash against a law passed by a legislature like the
Comstock laws. There is an incredible irony in that sometimes laws with purpose a end up with outcome b and a lot of the moral aims behind these Comstock laws lead to women's liberation, especially in terms of sexual liberation. And sometimes the pendulum swings back against the court system itself, as it did in the years after Griswolden Rowe. Basically, when courts step beyond their role, the political system tends to react and respond, and there is a correction in
the long arc of history. And if the current Supreme Court overturned rov Wade, we may see that pendulum swing yet again. Down the Dube down, the doube down, down the Dubi Downdubi downdu wa. Comstock Kane to build a wall like the walls of Jericho, reaching two women across the land is manifesto chy and to control what's going on below the little did he know that the walls will come tumbling down? Belou me down, but dude be down by do wah Downadubi down, Badubi down bde wa.
When he laid his laws upon that bed a patchwork they did. So it's so quilt those Golden Threads, The Empress Sarreo her Trumpets, She did blow to com Socks, Jerich Cole Fell Like Dominos and the Walls, King Tomblin Down, Madubi Down, Bedue Be Down. Flashback is written and hosted by me Sean Braswell, senior writer and executive producer at Ozzie. He was produced by Robert Coulos, Tracy Moran, he Orio to Gives You On, and Shannon Williams and Chris Hoff
engineered our show. Special thanks to the crew at I Heart Radio Podcast Networks, especially Sophie Lichtman and Jack O'Brien. Make sure to subscribe to Flashback on the I Heart Radio app or listen wherever you get your podcasts. This episode features the song Laws Come Tumbling Down, written and performed by teacup Gin. You can check them out on their website teacup gin dot com. Flashback is the latest podcast from Ozzy, a modern media company producing original TV series, festivals,
news and podcasts for curious people. Ozzie's unique storytelling focuses on the new and the next, whether that's forward looking news and features bold new perspectives on TV or brand new ways of looking at history in an earlier episode of Flashback. This season, we learned how billions of cigarettes were made available to American soldiers during World War One
and some of the unintended consequences of that. But there's another item that, unlike cigarettes, soldiers were not allowed to have condoms, and that decision had its own disastrous impact on the war effort. It's estimated that eighteen thousand U S soldiers per day were unable to serve because of venereal diseases. In other words, at any given time, about fIF of U S. Soldiers were basically off the front lines and on medical furlough, not because of injury, but
because of the clap to dive deeper. Hand to AUSI dot com slash flashback, that's o z y dot com slash Flashback. There you can find more of my lecture notes from today's episode, featuring extended interviews, links to further reading, and more information on the unintended consequences of legal cases like Chris Wald, as well as links to other hidden stories from history uncovered by me and other reporters at Aussie. We all need a break from the constant cycle to
learn something new, to gay new perspectives. The Great Courses Plus streaming service is an excellent resource to expand our knowledge on a variety of subjects or pick up a new hobby. I've been enjoying the Great Courses Plus while researching this season of flashback lectures like Playball, the Rise of Baseball is America's Pastime, History of the Supreme Court, and Battlefield Europe have helped me connect the dots on
several stories from history. Right now, they're giving our listeners a special limited time offer a free month of unlimited access to their entire library. Sign up now through our special U r L go to the Great Courses Plus dot Com Slash Aussie. That's the Great Courses Plus dot Com Slash o z Y the Great Courses Plus dot Com Slash Asi