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Thirty-four years ago today, the Supreme Court of the United States decided a landmark case in American legal history, one ranking in its bankrupt morality and constitutional indefensibility with Dred Scott.  That case is Roe v. Wade.
Roe found in the Constitution a so-called “right of privacy” that gave a pregnant woman the power to abort her fetus.
Building on the legal precedent of Roe, the case of Stenberg v. Carhart invalidated a Nebraska law that had outlawed the practice of infanticide that is euphemistically known as “partial birth abortion.”
The barbaric procedures sanctioned by Roe and Stenberg, the millions of unborn infants sucked from their mothers’ wombs, and the consequent disregard of innocent life now suffused throughout American culture, have their basis in a pre-Roe Supreme Court precedent not often discussed, Griswold v. Connecticut.  If one would deconstruct Roe and Stenberg, the place to begin must be with Griswold.
Estelle T. Griswold was Executive Director of the Planned Parenthood League of Connecticut.  Dr. C. Lee Buxton was a licensed physician, a professor at the Yale Medical School, and the league’s medical director at its New Haven, Connecticut center.
The popularly elected legislature of the state of Connecticut had enacted two statutes dealing with the subject of contraception.  The popularly elected governor of the state had approved them.  Connecticut’s intermediate appellate court had upheld their constitutionality.  So did the state’s highest court.
In other words, the people of Connecticut and their political and legal institutions all approved of the two statutes.
One statute provided that “[a]ny person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.” 
The other provided that “[a]ny person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”
According to the Connecticut Supreme Court’s opinion, Griswold and Buxton, as part of their “planned parenthood” counseling “gave information, instruction, and medical advice to married persons as to the means of preventing conception.  They examined the wife [of the married couple] and prescribed the best device or material for her use.  Fees were usually charged, although some couples were serviced for free.”
Because of this conduct, Griswold and Buxton were charged as accessories to their clients’ crime of using contraceptives.  They were found guilty, and eventually their case reached the Supreme Court of the United States.
The Court’s majority opinion, written by Justice William O. Douglas stands as a monument to how liberal judges use their judicial power to legislate social policy.
In a barely three-page opinion—three pages, that served as the predicate to the Roe and Stenberg cases— Douglas prospected his way through the Constitution.  Although what he found was fool’s gold, it glittered enough to satisfy six of his colleagues.  Indeed, Douglas’s majority opinion for himself and the other six justices exemplifies the serious problem of judges acting as architects of social policy:
[S]pecific 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. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
I am not making this up.  These words were written by a justice of the Supreme Court of the United States, in purporting to measure the constitutionality of state statutes against the Bill of Rights of the federal Constitution.  “Penumbras formed by emanations,” indeed!
Douglas continued:

The Fourth and Fifth Amendments were described [in an earlier case] as protection against all governmental invasions “of the sanctity of a man's home and the privacies of life”  We recently referred. . . to the Fourth Amendment [protecting against unreasonable searches and seizures] as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”
Next, Douglas noted that in the past there had been “many controversies over these penumbral rights of ‘privacy and repose,’ and concluded that earlier cases—not one of which had ever constitutionally enshrined a “right of privacy” relating to contraception—“bear witness that the right of privacy which presses for recognition here is a legitimate one.”
Note that in his straining to find in the Constitution some excuse to strike down the Connecticut statutes, Douglas was taking aim at Connecticut state laws by invoking provisions of the federal Bill of Rights—which was not intended to apply to the conduct of states.  The Bill of Rights was designed as a restraint on only the federal government.
Undeterred by inventing constitutional law as he went merrily on his way, Douglas concluded that:
[t]he present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” * * * Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
Not content to let his musings—totally divorced from any respectable interpretation of the Constitution—invoke a spectacle of the contraceptive police rummaging through bedrooms, Douglas segued into a summation that ranged from the melodramatic to the corny.

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Compared to Douglas’s pretentious mumbo-jumbo, Justice Potter Stewart’s dissent (joined by Justice Hugo Black) was a breath of fresh air. 
Characterizing the Connecticut statute as “an uncommonly silly law,” Stewart wisely observed that the Supreme Court of the United States was not being asked “to say whether we think this law is unwise, or even asinine.  We are asked to hold that it violates the United States Constitution.  And that I cannot do.”
Why not, since six of his colleagues apparently had no trouble doing just that?
In a direct reproach to Douglas having rutted around in virtually every amendment of the Constitution, Stewart reasoned that:
[a]s to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States.  It has not even been argued that this is a law “respecting an establishment of religion, or prohibiting the free exercise thereof.”  And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”  [First Amendment].  No soldier has been quartered in any house [Third Amendment].  And there has been no search, and no seizure [Fourth Amendment].  Nobody has been compelled to be a witness against himself [Fifth Amendment].[1]
When Stewart finished his exasperated search through the Bill of Right for some provision—any provision!—from which he could discern the “penumbras formed by emanations” that Douglas had somehow seen, Stewart asked a rhetorical question: “What provision of the Constitution . . . make[s] . . . this state law invalid?  The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees.’”
That wasn’t good enough for Stewart. “With all deference,” he wrote, “I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.
Stewart ended his dissent with a broad statement about judicial power—power that would later run amok in Roe and Stenberg:
At the oral argument in this case we were told that the Connecticut law does not “conform to current community standards.” But it is not the function of this Court to decide cases on the basis of community standards.  We are here to decide cases “agreeably to the Constitution and laws of the United States.”  It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.  If, as I should truly hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it.  That is the constitutional way to take this law off the books.
“The Connecticut House of Representatives recently passed a bill,” Justice Stewart noted in a footnote, “repealing the birth control law.  The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court.”  
Not only did Connecticut’s one-house repeal demonstrate the “silliness” of the statute and its ultimate unacceptability to the people of Connecticut, the legislative action made a point that seven Supreme Court justices refused to grasp: that under our constitutional system social policy is supposed to be made by the politically accountable branches of government, not by unelected, life-tenured federal judges.  The Connecticut legislative action underscored that the use of judicial power to rewrite the Constitution is at once politically arrogant and constitutionally unjustified.
And dangerous.  When Douglas’s ersatz “right to privacy” was later employed  in Roe v. Wade to justify invalidating virtually every state law inhibiting abortion, it opened the doors to the killing fields of abortion clinics—not only for “routine” abortions, but for the barbaric procedure known euphemistically as “partial birth abortion,” which, in reality, is akin to  infanticide.
As we reflect today on the suffering and death visited on the unborn, morality and fealty to the Constitution require our renewed commitment to erase the infamous legacy of these three cases.