Bench Memos

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This Week Entry on Griswold v. Connecticut


In my This Week entry for June 7, 1965, I originally stated that the Connecticut law against use of contraceptives “was no longer [being] enforced” when the Supreme Court issued its ruling in Griswold v. Connecticut.  In fact, as a reader informs me, I understated the point.  According to the 1961 plurality opinion in Poe v. Ullman

The Connecticut law prohibiting the use of contraceptives has been on the State’s books since 1879. During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson. The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State moved to dismiss the information. Neither counsel nor our own researches have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process. The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores. Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would more quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage—the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis.  [(Citations omitted.)]    

I have modified the This Week entry to make clear that the law had never been enforced.

Tags: Whelan


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