1961 June 19

Justice Harlan’s Historic Dissent on a Right to Privacy

 

The case of Poe v. Ullman was an early challenge to a Connecticut law prohibiting both the use of contraceptives and doctors providing information about their uses. The Supreme Court dismissed the case on this day, on the grounds that the plaintiffs lacked standing. The case is important, however, because of Justice John Marshall Harlan, II’s dissent, which articulated a right to privacy (see below). Four years later, the Court declared the Connecticut law unconstitutional and established a constitutional right to privacy in Griswold v. Connecticut, on June 7, 1965.

The fight for public access to birth control devices and information was a long one. See, for example, the notorious 1973 Comstock Act (passed on March 3, 1873), which outlawed the distribution of devices and information for many decades. Margaret Sanger, the greatest birth control advocate in American history, opened the first birth control clinic in America on October 16, 1916. She was arrested a week later and served a one month jail term for her crime. The Supreme Court struck down a Massachusetts law banning birth control devices on June 7, 1965, and established a constitutional right to privacy. Congress passed the first law providing federal funds for family planning services on December 24, 1970.

Justice Harlan, II was the grandson of Justice John Marshall Harlan who is famous for writing the lone dissent in Plessy v. Ferguson, on May 18, 1896, in which the Court upheld the doctrine of “separate but equal.”

Justice Harlan: “Here is the core of my disagreement with the present disposition. As I will develop later in this opinion, the most substantial claim which these married persons press is their right to enjoy the privacy of their marital relations free of the enquiry of the criminal law . . . .”

Learn more: David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1998)

Learn more: John D’Emilio and Estelle Freedman, Intimate Matters: A History of Sexuality in America (1988)

Listen to Harriet Pilpel argue Poe v. Ullman before the Court for Planned Parenthood: http://www.oyez.org/cases/1960-1969/1960/1960_60

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