Abortion battle stirs up state’s role
As she looked out over the state Capitol lawn at a sea of women in pink plastic capes, Betty Gallo was sure she was standing on the right side of history.
The familiar faces of Richard Blumenthal and George Jepsen were there, though this
was before either had served as Connecticut attorney general. The crowd rallied in support of women’s reproductive rights even as states such as Pennsylvania attempted to challenge Roe v. Wade, the landmark Supreme Court case where the Court ruled that the due process clause of the 14th Amendment to the U.S. Constitution provides a fundamental “right to privacy” that protects a pregnant woman’s liberty to choose whether or not to have an abortion.
That was in 1989, a year before Connecticut would officially codify the language of Roe v. Wade in state law.
But if the scene sounds familiar, that’s because now, 30 years later, it’s playing out again as men and women across the country rally against challenges to the famous U.S. Supreme Court case. A handful of states under rightwing control have passed strict abortion bans in hopes of challenging the protections of Roe, now that a conservative majority has returned to the high court.
And with the latest onslaught on Roe, another landmark constitutional case — Griswold v. Connecticut — has returned to the forefront of the discussion, as has Connecticut’s back-andforth history with reproductive liberties. “My horrifying fear of course is that they will overturn Roe,” said Gallo, a now-retired lobbyist for Planned Parenthood and the American Civil Liberties Union who led the charge to backstop abortion rights into state law in 1990.
Griswold is widely taught as a precursor to Roe, the case in which the Court struck down a state ban on contraceptives by establishing a family’s constitutional right to make its own decisions privately, without state interference.
“The problem with overturning Roe, going back to the dark ages, is that it’s based on the right to privacy, and that came about under Griswold,” Gallo said. “If you got this court to say there was no right to privacy in the Constitution, that’s very, very horrible. That’s everything I’ve worked for my whole life.”
The battle for privacy rights
Legal scholars say it’s unlikely the Supreme Court would ever overturn the Griswold decision. But it is possible that an erosion of the rights protected by both the Roe and Griswold decisions could lead to limited access to contraception and other reproductive health care.
“There seem to be the votes for the Court to stand by Griswold even if they were to erode or even to erase Roe,” said Reva Siegel, a professor at Yale Law School who has written extensively about the history of these cases. “But that does not mean the [Chief Justice John] Roberts court still couldn’t threaten women’s access to contraception through expansive protections for religious liberty. We have yet to see whether the court will pay sufficient regard for protecting women’s access to contraception.”
Though Connecticut now has a reputation as a progressive haven for reproductive rights, it certainly hasn’t always been. In 1961, birth control was still illegal in the state, even for married couples.
Estelle Griswold, then-president of Connecticut Planned Parenthood, opened a new clinic in New Haven and, as planned, was quickly arrested for distributing contraception. She sued, and in 1965 the U.S. Supreme Court ruled in her favor, establishing a constitutional “right to privacy” for American citizens.
The court decided that access to contraception was a matter of privacy between a woman and her doctor. This laid the foundation for Roe v. Wade, which stands upon the Griswold decision by deciding abortion, too, is protected under a right to privacy.
The problem, legal experts say, is that a right to privacy is never explicitly mentioned in the Constitution, and is only protected in the penumbra of several amendments.
The Griswold decision has only been threatened once, in the battle of the confirmation of Judge Robert Bork, who did not believe privacy was protected in the constitution. His view on privacy sparked outrage and he ultimately was not confirmed, but the battle for his seat on the high court helped entrench Griswold, Seigel said. “Ultimately, Reagan nominated and the Senate confirmed Justice Anthony Kennedy,” Siegel said, referencing her own writing in an essay “How Conflict Entrenched the Right to Privacy.”
“Not only Justice Kennedy, but also subsequent conservative nominees including Chief Justice Roberts and Justice [Samuel] Alito, affirmed Griswold during their confirmation hearings ... After this great conflict, subsequent nominees concluded that Griswold, like Brown, was part of the constitutional canon — accepted as mainstream.”
Codified in state law
Lawmakers on both sides of the aisle in Connecticut have stood up in recent days for women’s right to choose.
It’s not unusual in Connecticut to see Republicans stand alongside Democrats in support of women’s reproductive rights. It’s a stark contrast to much of the rest of the country, where pro-choice Republicans are far more difficult to come by, and adds to Connecticut’s progressive reputation.
But it hasn’t always been so. In 1860, Connecticut was the first state to outlaw all abortions by statute. “The Connecticut law became a model for the rest of the nation,” said Andrea Haas Hubbell, a Washington, Conn. resident who wrote, produced and directed a feature documentary, “The Roots of Roe.”
It wasn’t until 1990, when the language of Roe v. Wade was codified in state law by the General Assembly, that the state’s traditional conservative stance on reproductive rights was fully erased.
“At that point we went from a state where it was politically smart not to be pro-choice to one where you couldn’t run for statewide without being pro-choice,” Gallo said.