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Privacy Article

March 1, 2022

Recently, candidates for Michigan's next attorney general said they believed that Griswold v. Connecticut, the 1965 Supreme Court decision that said contraceptive purchases which were shielded by a right to privacy was wrongly decided. One of the candidates stated that, “This case, much like Roe v. Wade, I believe, was wrongly decided because it was an issue that trampled upon states' rights," said former Michigan House Speaker Tom Leonard. "It was an issue that should have been left up to the states."

Griswold v. Connecticut is a landmark case that established U.S, citizens’ right to privacy under the Constitution. The case involved Estelle Griswold, the executive director of Planned Parenthood, and the Connecticut court, which found Griswold and other medical professionals in violation of a state law that criminalized counseling and other medical treatment regarding contraception to married couples. Griswold, argued that Connecticut’s law and subsequent punishment to Griswold was in violation of citizens’ privacy.

The case called into question whether the Constitution protects the right of privacy, specifically marital privacy, against state’s restrictions. In a 7-2 ruling, the Supreme Court concluded that Connecticut’s state law against contraceptives and counseling violated a “zone of privacy” that is inherent in the Constitution. Even though the Constitution does not explicitly protect a general right to privacy, there are various degrees within the Bill of Rights that create penumbras, or zone, and establish a right to privacy. It combined, the First, Third, Fourth and Ninth Amendments to create the reasoning for the constitutional right to privacy in marital relations. The opinion in Griswold rested and was inferred the right to privacy from the Ninth Amendment — which sensibly but somewhat ironically spells out that not all rights are spelled out in the Constitution.," The conservative move will be to eliminate the right to privacy, since some will look to the failure of the constitutional founders to announce the right as existing.

While other Michagan candidates following the same proposition, along with Mr. Leonard, attempted to walk back their statements and conveying that they have no interest in banning birth control, the ground is ripe for the next abridgment of women’s (and men’s) rights to contraception and the fundamental underlying right, an implied right under the constitutional decisions to privacy. They did not walk back the idea of limiting the holding in Griswold, which seems to be the way legislatures have moved of nearly fifty years against Roe v. Wade.

Ironically, privacy is being challenged during a time when privacy is such a concern from matters such as technology that can actually observe a person though its transactions, its telephone, through a GPS, and commands to devices within the confines of one own home to turn off the lights. When privacy would otherwise seem to be the subject of further protection, because of the” sex rights” derived from privacy, the idea of protecting privacy seems to be treated as a secondary concern. Yet it is privacy which is paramount.

Since Griswold has long been a thorn in the foot of conservative institutions, whether it is the Catholic Church or the conservative strains of a political movement, does that mean that privacy will be a collateral target; intended or otherwise? The rights of privacy associated directly or indirectly with sexual rights has been seen as a liberal seminole decision that gave root the ideology and the a foundation for the Supreme Court's later Roe v. Wade ruling guaranteeing abortion rights. The reactionary conservative reaction is really not that new since both presidential candidates, Mitt Romney and Rick Santorum, criticized the ruling during a debate. That same year, the late Justice Antonin Scalia went so far as to declare that "there is no right to privacy."

Whether the current Supreme Court agrees is an open question overturn Roe v Wade, or limiting Griswold, or curtailing the implied right to privacy remains to be seen. The recent ascendance of the court's 6-3 conservative supermajority places into question otherwise seemingly settled precedents; e.g., voting rights, religious freedom and other contentious issues. Looking at the law as vector of both direction and time, the direction for attacking privacy will continue until there is a reason to change. At this time, one should not expect a change from this conservative legal vector.