The Volokh Conspiracy - Hugo, You Sure Called That One:

The Court's first modern "right to privacy" case is Griswold v. Connecticut (1965), which held that married couples have a constitutional right to use contraceptives. Eight years later, of course, Griswold was used as a foundation for the far more controversial Roe v. Wade, which recognized a constitutional right to abortion.

It turns out, though, that at least one commentator, saw the link between Griswold and Roe even in 1965. Here's part of the transcript:

[Justice Hugo Black]: Would your argument concerning these things you've been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?

MR. EMERSON [the lawyer for the challengers]: No, I think it would not cover the abortion laws Or the sterilization laws, Your Honor. Those--that conduct does not occur in the privacy of the home.

[Justice Black]: There is some privacy, as a rule, and the individual doesn't generally want it made known.

MR. EMERSON: Well, that aspect of it is true, Your Honor. But those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this--

[Justice Black]: Part of it goes on in the home, undoubtedly.

MR. EMERSON: Part of it does, Your Honor. But the conduct that is being prohibited in the abortion cases rakes place outside of the home, normally. There is no violation of the sanctity of the home.

(The transcript doesn't identify the Justice, but Johnson, Griswold v. Connecticut 149 (2005), does.) Here, though, another Justice, steps in to help Emerson:

[Justice Byron White]: Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being, doesn't it? Isn't that a rather different problem from contraception?

MR. EMERSON: Oh, yes, of course.

[Justice White]: And isn't it different in the sense of the State's power to deal with it?

MR. EMERSON: Oh, yes. Of course, the substantive offense is quite different here.

Now here's the kicker: Justice Black dissented in Griswold, precisely because he disapproved of the principle that the federal courts should protect unenumerated rights. Justice White concurred in Griswold, reasoning that the Court should instead strike down the state law.

But then, eight years later, in Roe, Justice White dissented from the Court's decision recognizing a right to an abortion — a decision that Justice Black had more or less predicted, over Justice White's seeming disagreement, in 1965. What, I wonder, did Justice White say to the ghost of his late colleague, when he saw that Griswold had the very effect that Justice Black had predicted, but the risk of which Justice White had dismissed?

(Of course, one can certainly argue that the Court was right in Griswold even if this laid the foundation for what one sees as a wrong decision in Roe; or one can argue that Griswold and Roe are both right, or that the Roe majority would have decided the same way even had Griswold come out the opposite way. My point here is simply to note Justice Black's seeming prescience in predicting that the Griswold principle would be deployed to protect abortion.)

Thanks to Lynxx Pherrett for pointing me to this bit of history.

	[Eugene Volokh, September 19, 2005 at 2:43pm] Trackbacks Hugo, You Sure Called That One: The Court's first modern "right to privacy" case is Griswold v. Connecticut (1965), which held that married couples have a constitutional right to use contraceptives. Eight years later, of course, Griswold was used as a foundation for the far more controversial Roe v. Wade, which recognized a constitutional right to abortion. It turns out, though, that at least one commentator, saw the link between Griswold and Roe even in 1965. Here's part of the transcript: [Justice Hugo Black]: Would your argument concerning these things you've been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions? MR. EMERSON [the lawyer for the challengers]: No, I think it would not cover the abortion laws Or the sterilization laws, Your Honor. Those--that conduct does not occur in the privacy of the home. [Justice Black]: There is some privacy, as a rule, and the individual doesn't generally want it made known. MR. EMERSON: Well, that aspect of it is true, Your Honor. But those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this-- [Justice Black]: Part of it goes on in the home, undoubtedly. MR. EMERSON: Part of it does, Your Honor. But the conduct that is being prohibited in the abortion cases rakes place outside of the home, normally. There is no violation of the sanctity of the home. (The transcript doesn't identify the Justice, but Johnson, Griswold v. Connecticut 149 (2005), does.) Here, though, another Justice, steps in to help Emerson: [Justice Byron White]: Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being, doesn't it? Isn't that a rather different problem from contraception? MR. EMERSON: Oh, yes, of course. [Justice White]: And isn't it different in the sense of the State's power to deal with it? MR. EMERSON: Oh, yes. Of course, the substantive offense is quite different here. Now here's the kicker: Justice Black dissented in Griswold, precisely because he disapproved of the principle that the federal courts should protect unenumerated rights. Justice White concurred in Griswold, reasoning that the Court should instead strike down the state law. But then, eight years later, in Roe, Justice White dissented from the Court's decision recognizing a right to an abortion — a decision that Justice Black had more or less predicted, over Justice White's seeming disagreement, in 1965. What, I wonder, did Justice White say to the ghost of his late colleague, when he saw that Griswold had the very effect that Justice Black had predicted, but the risk of which Justice White had dismissed? (Of course, one can certainly argue that the Court was right in Griswold even if this laid the foundation for what one sees as a wrong decision in Roe; or one can argue that Griswold and Roe are both right, or that the Roe majority would have decided the same way even had Griswold come out the opposite way. My point here is simply to note Justice Black's seeming prescience in predicting that the Griswold principle would be deployed to protect abortion.) Thanks to Lynxx Pherrett for pointing me to this bit of history.