INTRODUCTION

Within the family law canon, Griswold v. Connecticut is heralded as foreshadowing the modern right to privacy. In Griswold, the U.S. Supreme Court struck down the Connecticut law banning contraceptive use due to its unconstitutional intrusion upon marital privacy. By upholding a married couple's right to use contraception, the Court established that procreation is not the sole or defining purpose of marriage.

Griswold's legacy includes the notable privacy cases Eisenstadt v. Baird, Roe v. Wade, and Carey v. Population Services International. Indeed, “Griswold's story demonstrates how conflict over the right to privacy – one of the most fiercely contested rights of the modern constitutional canon – has helped to entrench the right to privacy, to make it endure, and to imbue it with evolving meaning.”

In contrast, in the feminist judgment, Professor Laura Rosenbury, writing as Justice Rosenbury, rejects the privacy frame, and somewhat jarringly catapults forward to a world of sexual liberty regardless of relationship status. Justice Rosenbury also explicitly ties contraception to women's ability to participate in civic and political life, emphasizing that control over one's reproductive future is crucial to equal citizenship regardless of gender, race, or class. The feminist Griswold therefore propels the opinion out of the marital bedroom into a world of sexual pluralism that challenges traditional divides between public and private.

CONNECTICUT's CONTRACEPTION BAN – RELICS OF THE COMSTOCK ACT (1873)

As Rosenbury explains, the statutes in Griswold were vestiges of the 1873 Comstock Act, a federal law that prohibited the delivery or transportation of obscene or immoral material, which included any methods of, or information pertaining to, birth control. The Comstock Act was openly moralistic, and its true purpose was to link sex and procreation – any separation of the two was “obscene.” The law's namesake, Anthony Comstock, was a so-called morality crusader. By early 1874, it was publicized that Comstock had seized 130,000 pounds of books, 194,000 pictures and photographs, and 60,300 “articles made of rubber for immoral purposes, and used by both sexes.”