Part III: The Right to Privacy and Health.

Mike Magee

It began on March 7, 1844, with the birth of Anthony Comstock, in New Canaan, Connecticut. Raised in a strict Christian home, his religiosity intensified during a two-year stint in the Union Army during the Civil War.

A member of the 17th Connecticut Infantry, he took great offense to the profanity and debauchery he witnessed in and among his fellow soldiers. With the strong support of church-based groups of the day, and as the self-proclaimed “weeder in God’s garden”, he sought out a purpose and found a political vehicle in New York City’s Young Men’s Christian Association, and parlayed that to a post as the United States Postal Inspector.

His overarching goal was to advance Victorian morality by stamping out smut, which by his definition included obscene literature, abortion, contraception, gambling, prostitution, and more. The political arm he created in 1873, The New York Society for the Suppression of Vice, was chartered by the New York state legislature, and included the twin mottos of “Morals, not Art and Literature” and “Books are feeders for brothels.”

Using local postal agents, his searches and seizures, whose subsequent sales were shared 50/50 with his own organization, bank rolled the lobbying of Congress necessary to pass the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”, otherwise known as the Comstock Laws.

Pornography, contraceptive equipment, reproductive health literature, and books deemed risque’ or suggestive all fell into his crosshairs.

By his own account, prior to his untimely death on September 21, 1915, he had prosecuted 3600 defendants, seized 160 tons of obscene literature, enjoyed the active support of industry, the AMA, and the Catholic Church among others, and sparked equally restrictive and intrusive legislation in 24 states – one of those being Connecticut.

Along the way, he made powerful enemies. For example, in 1905 George Bernard Shaw, on hearing in London that his new play, “Man and Superman” had been removed from the New York Public Library, had this to say in a public letter published in the New York Times, “Dear Sir – Nobody outside of America is likely to be in the least surprised. Comstockery is the world’s standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep-seated conviction of the Old World that America is a provincial place, a second-rate country-town civilization after all.”

A decade later, arch-enemy Margaret Sanger, laid him bare with these words, “We know the capitalist class must have a slave class, bred in poverty and reared in ignorance. That is why it is quite consistent with their laws that there should be a heavy penalty of five years’ imprisonment for imparting information as to the means of preventing conception. Industry…(must) undersell its rival competitors. They have only one way to do this, and that is to get labor cheap. The cheapest labor is that of women and children; the larger the number of children in a family, the earlier they enter the factory.”

It was not power but time that overtook Comstock. He died at age 71 in 1915, but his supporters fought on in an increasingly loosing battle throughout “the Roaring 20’s and into the economic collapse of the nation, the Great Depression, and a looming war in Europe.

With World War II fast approaching, FDR and Justice Hughes weighed priorities and decided indecency was less of a threat to the country than venereal disease among the troops. The AMA lent its support as well, and drugstores responded to the laissez faire by stocking over 600 different “feminine hygiene” products.

But the final nail in the Comstock coffin was fittingly delivered in the crusader’s home state. The protagonist was Estelle Griswold, Executive Director of the Planned Parenthood League. Their first state office had opened in Hartford in 1935. In 1961, Griswold was arrested and fined $100 for providing contraceptives and birth control advice in their New Haven office.

That arrest led to a landmark suit in the Supreme Court with effects far beyond Comstock. On June 7, 1965, in a 7 to 2 decision, authored by Justice William O. Douglas, the Supreme Court issued a 7–2 decision and struck down Connecticut’s state law against contraceptives.

In the Majority Opinion, Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system.”

In justifying the decision, he introduced an astronomical term, penumbra – the partially shaded outer region of the shadow cast by an opaque object such as the Earth.

In Justice Douglas’s words, “The provisions of the Bill of Rights created ‘emanations’ of protection that created ‘penumbras’ within which rights could still be covered even if not explicitly enumerated in the Constitution. The language and history of the Ninth Amendment reveal…that there are additional fundamental rights, protected from governmental infringement, which exist alongside those…specifically mentioned in the first eight constitutional amendments…To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever… Rather, the Ninth Amendment shows a belief …that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”

Of course, the elephant in the room, was self-evident. If “privacy” at the intersection of health and intimacy resided in the protective shield of “penumbra”, how about health itself? Doesn’t it deserve similar treatment?

Part IV (continued).