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05/16/2022

Is Griswold in Accord with the Original Meaning?
Mike Rappaport

With the leak of Justice Alito's draft opinion overturning Roe v. Wade, many people have wondered whether the same reasoning would overturn Griswold v. Connecticut, which protected the right to purchase contraceptives.  While I reject the justifications given in Griswold and Roe, I do believe that Griswold's result might be justified by the 14th Amendment's original meaning under the prevalent rights view of the Privileges or Immunities Clause.   I discuss this theory in two prior Originalism Blog posts: here and here

Here is an excerpt from the first post: 

These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment (which several other scholars hold in various forms).  Under this view – which might be termed the prevalent rights view – “the privileges or immunities of citizens of the United States” – refers to the rights that are prevalent throughout the United States at a particular time.  Thus, to determine what those rights are, one must look at what rights the states (and perhaps the federal government) protect.  It may be that those rights should have been protected over a period of time, not just for a particular instant.  

Under this view, there appears to be a strong argument that the right of married couples to use contraceptives was a prevalent right in 1965 – that is, a right enjoyed throughout the United States.  According to Justice Harlan in Poe v. Ullman, “Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.”   

If Justice Harlan is right, then this would support a right to use contraceptives.  Exactly the parameters of that right – whether it extended to unmarried couples, to the distribution of contraceptives, and other aspects – would depend on the number of states that treated these aspects as rights and the necessary number needed to establish it as a prevalent right.