‘Flashback’ Lecture Notes: How One ‘Uncommonly Silly’ Law Led to Abortion Rights
WHY YOU SHOULD CARE
Because, as U.S. Supreme Court Justice Ruth Bader Ginsburg likes to say, a better symbol for America than the eagle is the pendulum.
By Sean Braswell
In episode six of Flashback, OZY’s chart-topping history podcast, we learn how the U.S. Supreme Court’s efforts to address an antiquated contraception ban from the 19th century unexpectedly resulted in an expansive new bundle of rights for Americans, including the controversial right to an abortion.
For more than half a century, thanks to the Supreme Court’s landmark decision in 1965 in Griswold v. Connecticut, Americans have enjoyed a constitutional right to privacy. But few realize that this right, considered by some a “bedrock principle” of American law — and one that has prevented countless unwanted pregnancies and births over the past half-century — came very close itself to never being born.
This week on Flashback, we explore the often uneasy relationship between law and politics, between morality and a changing society. You can listen here, and then enjoy digging deeper into the story in my Lecture Notes below.
AN AWKWARD ARGUMENT OVER AN “UNCOMMONLY SILLY” LAW
U.S. Supreme Court Justice Potter Stewart famously labeled the 1879 Connecticut contraception ban that came before the court in Griswold an “uncommonly silly” law. And the oral argument before the Supreme Court about the case in March 1965 was itself uncommonly awkward. All nine justices hearing the challenge to the law were men over the age of 50 who were not exactly keyed into contraceptive use or reproductive health issues. There were plenty of awkward, even amusing moments. “Is the device which you are talking about here described in the record?” 79-year-old Justice Hugo Black queried of one method of contraception, quickly adding, “I won’t ask you to describe it,” which sparked laughter in the court. You can listen to a sample of the recorded audio from the argument here.
SUPREME COURT JUSTICE AND GAME SHOW CONTESTANT
The man assigned to write the majority opinion in Griswold, William O. Douglas, a 66-year-old libertarian from Washington state, was not your typical Supreme Court justice. Sometimes known as Wild Bill, Douglas was something of a lady’s man, and the first justice to have been divorced (by the time of the Griswold case he was about to marry his fourth wife, who was 23 years old). The sitting justice had also once appeared on the popular 1950s game show What’s My Line? in which blindfolded contestants attempted to figure out the identity of a mystery celebrity guest. Watch them try to figure out what a Supreme Court justice is doing on the show in this clip from 1956.
PRIVACY RIGHTS BECOME A VERY PUBLIC AFFAIR
As we covered in this week’s episode, the legal debate over the right to privacy established in Griswold became a centerpiece of Supreme Court confirmation hearings, including most famously the tussle between then U.S. Sen. Joe Biden and the conservative jurist Robert Bork in 1987. Listen as Daniel Urman, a constitutional law scholar at the Northeastern School of Law, explains to me how some other nominees to the court handled the privacy grilling they received in the Senate.
THE NEXT STAGE OF THE ROE V. WADE DEBATE: ABORTION PILLS BY MAIL
The debates over the right to privacy and abortion will continue to affect American life and policy. And as some states pass laws to curtail abortion access, the next stage of the fight may be telemedicine, with providers responding to restrictions by sending abortion-inducing pills across state lines, eliminating the need for an in-person doctor’s visit. Read more about this trend and its potential consequences on OZY.
A SPECIAL THANKS
Finally, a special thanks to the North Carolina–based indie-jazz band Tea Cup Gin, who wrote and performed the song “The Laws Came Tumblin’ Down” especially for this episode of Flashback. You can listen to it here.