Is Doctor Counselling a Married Couple About Pregnancy Prevention Considered a Criminal Act ?

In Griswold v. Connecticut (381 US 479 [1965]), the Supreme Court ruled unconstitutional a Connecticut law which made it a criminal offense for a doctor to counsel married couples about contraceptive methods. Justice Douglas, in delivering the majority opinion, recounted the progression of cases that granted persons protection against various types of governmental intrusions. He concluded: "The forgoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance ... Various guarantees create zones of privacy." (Griswold at 484). Today the holding in Griswold would be uncontroversial. In fact, most people would probably be quite surprised to learn that just 35 years ago it was a criminal offense for a doctor to give birth control advice--and to a married couple no less. However, the method by which the Supreme Court arrived at its conclusion that the Connecticut law was unconstitutional was then, and continues to be, quite controversial. It was probably an unfortunate choice of words for Justice Douglas to associate rights with a "penumbra," a word borrowed from optics and astronomy which is associated with shadows or darkened regions. In constructing the "penumbra theory," Justice Douglas was dealing with two main problems. First, the Constitution nowhere mentions a right to privacy. Second, the Supreme Court purportedly laid to rest, only two years earlier, the oxymoronic concept of "substantive due process." ( Ferguson v. Skrupa, 372 US 726 [1963].)