This article was published at 75 Iowa Law Rev. 915 (1990).


This essay examines the right to use birth control in Connecticut before Griswold v. Connecticut (1965). It is often assumed that the Connecticut birth control ban was not enforced, and consequently did not affect access to birth control in the state. Accordingly, the cases challenging the state statute have been viewed as not real cases or controversies deserving of court attention. This essay demonstrates that this view is erroneous. Connecticut law was enforced against the personnel of birth control clinics for aiding and abetting the use of contraceptives. Enforcement of the statute against those working in clinics kept birth control clinics closed in Connecticut for twenty-five years. The lack of birth control clinics may not have greatly affected middle-class and wealthy people who could afford private medical care, since doctors would often ignore the laws. The lack of clinics primarily harmed lower-income women who needed the free or low-cost services birth control clinics provided. It was the impact of birth control restrictions on the poor that led Dr. C. Lee Buxton, along with Estelle Griswold, to publically violate the law by opening the clinic that resulted in their arrests, and ultimately in the Supreme Court ruling in Griswold.

Beyond its importance to the history of reproductive rights, this essay illuminates the history of rights under state constitutional law. Until 1965, the United States Supreme Court largely avoided cases involving reproductive rights, with the notable exception of sterilization. Appeals to the Supreme Court in cases involving constitutional challenges to state restrictions on contraceptives were regularly dismissed for want of a substantial federal question or due to lack of standing, so that substantive rulings in birth control cases were confined to the state courts and, on questions of federal law, to the lower federal courts. Because the Supreme Court did not hear these cases, the right to use birth control was determined by state law until 1965, when the Court decided Griswold v. Connecticut. Consequently, an examination of this area of law enables us to see the independent treatment of constitutional rights by one state court without meaningful input from the U.S. Supreme Court.


Constitutional Law | Law and Gender | Law and Society | Legal History | Public Law and Legal Theory | Sexuality and the Law

Date of this Version

July 2010