Contraception and abortion
VOLOKH at law.ucla.edu
Mon Sep 19 15:25:48 PDT 2005
A few days ago, I asked on the list which Justices asked certain
questions in Griswold v. Connecticut about the contraception/abortion
analogy. It turns out that the answer is available from John W.
Johnson, Griswold v. Connecticut: Birth Control and the Constitutional
Right to Privacy 149 (2005) -- and it struck me as very interesting.
Here's the transcript, with the Justices' names included:
[Justice Hugo Black]: Would your argument concerning these things
you've been talking about relating to privacy, invalidate all laws that
punish people for bringing about abortions?
MR. EMERSON [the lawyer for the challengers]: No, I think it would
not cover the abortion laws Or the sterilization laws, Your Honor.
Those--that conduct does not occur in the privacy of the home.
[Justice Black]: There is some privacy, as a rule, and the
individual doesn't generally want it made known.
MR. EMERSON: Well, that aspect of it is true, Your Honor. But those
are offenses which do not involve the type of enforcement apparatus as
to what goes on in the home that this--
[Justice Black]: Part of it goes on in the home, undoubtedly.
MR. EMERSON: Part of it does, Your Honor. But the conduct that is
being prohibited in the abortion cases rakes place outside of the home,
normally. There is no violation of the sanctity of the home.
[Justice Byron White]: Well, apart from that, Mr. Emerson, I take it
abortion involves killing a life in being, doesn't it? Isn't that a
rather different problem from contraception?
MR. EMERSON: Oh, yes, of course.
[Justice White]: And isn't it different in the sense of the State's
power to deal with it?
MR. EMERSON: Oh, yes. Of course, the substantive offense is quite
Of course, Black dissented in Griswold, because he thought
striking down this law would leave the Court with too much power to
reject laws more generally. White concurred, obviously unpersuaded by
Black's concerns. Then, eight years later, White dissented from Roe, in
which Griswold was indeed deployed to strike down abortion statutes.
What, I wonder, did Justice White recall about his and Justice Black's
exchange during the Griswold argument?
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