Abor­tion bat­tle stirs up state’s Gris­wold his­tory

The Register Citizen (Torrington, CT) - - FRONT PAGE - By Kait­lyn Kras­selt

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 right-wing 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-and-forth his­tory with re­pro­duc­tive lib­er­ties.

“My hor­ri­fy­ing fear, of course, is that they will over­turn Roe,” said Gallo, a 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, then­pres­i­dent 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 over 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, or to see a Repub­li­can can­di­date for statewide of­fice proudly state their pro-choice po­si­tion, as sev­eral did last fall. 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.

So now, if the fed­eral case is over­turned and abor­tion law is left up to states, it would re­main le­gal in Con­necti­cut, and politi­cians are mak­ing that clear. Gov. Ned La­mont penned a let­ter to womenowned busi­nesses in states where abor­tion is be­ing chal­lenged, let­ting them know that they are wel­come here — a state that will con­tinue to fight for re­pro­duc­tive rights.

Gallo’s fears aren’t eased much. She’s wor­ried not just about women in Con­necti­cut, but across the coun­try, in poor and ru­ral com­mu­ni­ties where ac­cess is al­ready lim­ited.

“Peo­ple took it for granted, that it was a set­tled is­sue and ... if the court rules, there’s noth­ing we can do,” she said. “Those of us who lived in a world where none of these things were avail­able know that if you can­not con­trol your re­pro­duc­tive health, it re­ally has a huge im­pact on your abil­ity to be in the work­place. There are so many things about women’s lives that are im­pacted by our abil­ity to con­trol our re­pro­duc­tive health. As usual it’s go­ing to be hard­est for peo­ple who have no money and no re­sources. We all got com­pla­cent and now we’re fight­ing for it again.”

Planned Par­ent­hood of South­ern New Eng­land / Con­trib­uted photo

A clip­ping from the front page of the New Haven Reg­is­ter of June 8, 1965, shows Estelle Gris­wold, left, and Ernest Jah­ncke, pres­i­dent of the Planned Par­ent­hood League of Con­necti­cut, cel­e­brat­ing the Supreme Court’s de­ci­sion of Gris­wold v. Con­necti­cut.

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