Justice Harlan II’s Historic Dissent on a Right to Privacy
In the case of Poe v. Ullman, an early challenge to a Connecticut law prohibiting both the use of contraceptives and doctors providing information about their uses, Justice John Marshall Harlan, II on this day wrote a strongly worded dissent that articulated a constitutional right to privacy (see below).
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 . . . .”
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 Supreme Court dismissed Poe v. Ullman on this day, on the grounds that the plaintiffs lacked standing.
The fight for public access to birth control devices and information was a long one. See, for example, the notorious 1873 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. 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.”
Learn more: David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1998)
Read: John W. Johnson, Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy (2005)
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
Read about the history of privacy: Sarah Igo, The Known Citizen: A History of Privacy in Modern America (2020)