Griswold, Marriage Equality, And The New Attacks On Us All

This week marks the 52nd anniversary of a critically important U.S. Supreme Court case that you might not have heard of. In Griswold v. Connecticut in 1965, the high court struck down a state law that forbid dispensing contraception to married couples. Yes, that’s right – as recently as the mid-1960s the government in many states got to decide whether married adults could legally use birth control.

The case was important not only for that important change in the law, but because it was the beginning of a series of cases developing some important themes – privacy and personal autonomy. Seven years after Griswold, the Supreme Court extended its reasoning from that case to single people, allowing them to access contraception. And one year later, in Roe v. Wade, the Court held that a woman had a constitutional right to end a pregnancy, subject to certain limitations.

The central concept linking these cases together was the notion that the Constitution contains protections for individual privacy – even though that word is not found in the document. The justices reasoned that the existence of other rights that are spelled out, like refusing to have soldiers quartered in your home or to be subjected to unreasonable searches, means that the framers did value having spheres of privacy into which the government may not enter. They further found that if there were any area in which a privacy interest is compelling, it is around decisions involving whether or not to have children.

The cases developing this right of privacy, which are part of a larger judicial doctrine known as “substantive due process,” helped to create the foundation for more recent cases recognizing essential rights for LGBTQ people. Starting with Lawrence v. Texas in 2003, the Supreme Court found that state laws criminalizing consensual sex between same-sex adults violated the Constitution’s guarantee of personal liberty, including privacy. From there, the Court went on to hold that federal and state laws barring same-sex marriage were also unconstitutional, infringing on the liberty and autonomy rights of LGBTQ people.

In the meantime, back in the reproductive rights realm, the Affordable Care Act (ACA) in 2010 ensured that health plans would have to offer coverage for birth control, and last year the Supreme Court struck down a set of Texas laws that put prohibitively onerous restrictions on abortion clinics.

So things would seem to be moving in the right direction. Right?

Enter the Trump administration.

Since taking office in January, Trump has: reinstated and worsened punitive limits on international family planning funding; signed a law getting rid of an important rule protecting Planned Parenthood; applauded the House of Representatives for passing an ACA repeal bill barring Planned Parenthood from important family planning programs; rescinded key protections for transgender students in public schools; and appointed numerous opponents of LGBT and reproductive rights to critical positions in his administration (not to mention the installation of a far-right Supreme Court justice who is no friend to either reproductive or LGBT rights). And just the other day, word got out that his appointees in the Department of Health and Human Services are about to blow a huge hole in the ACA’s guarantee of birth control coverage, allowing any employer or health plan with a religious or moral objection to simply refuse to provide this coverage, depriving women of a key health care protection. Over fifty years after Griswold said that states could not interfere in couples’ private decisions around contraception, this administration is working to ensure that employers may do so by imposing their own personal beliefs on employees.

Many of these moves have not gotten the same public attention as some of Trump’s other more egregious policy moves, such as the “travel” (read: Muslim) ban or the disastrous decision to abandon the Paris climate accord. Yet they should worry all of us deeply. While Trump himself may well be agnostic on matters of reproductive freedom and LGBTQ equality, he has populated his administration with ideologues who care very much and are bent on elevating a notion of “religious freedom” that, if fully implemented, would decimate the ability of so many in this country to form and raise their families without facing discriminatory treatment. The “religious liberty” executive order that he signed on May 4th effectively gave these officials “carte blanche” to subjugate reproductive and LGBT rights to the interests of those seeking to diminish those rights in the name of religion.

The good news is that people are watching, and they are fighting back. Constituents are demanding answers from their members of Congress and rallying in the streets to make their opposition to these regressive measures heard. We at NCLR are ramping up our efforts to take on discrimination in its many forms, whether in courts or in state legislatures or in Washington, DC, holding our elected officials accountable so that our hard-won progress does not fall victim to a reactionary administration bent on dividing us. So let’s celebrate Griswold and the era of expanding personal freedom that it ushered in, while renewing our commitment to ensuring that our laws continue to protect, rather than diminish, that freedom.