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These court cases have shaped sexual and reproductive rights today. They could be at risk if (when) Roe v. Wade falls.

A history of modern privacy cases, influenced by landmark Griswold

Dr. C. Lee Buxton and Estelle Griswold, center, of the New Haven Planned Parenthood League spoke with their lawyer, Miss Catherine Roraback, left, on the first day of their trial, Jan. 2, 1962, testing Connecticut's 82-year-old birth control law in New Haven Connecticut. Griswold v. Connecticut went on to the Supreme Court.UPI

The 1965 landmark Supreme Court case known as Griswold v. Connecticut set the foundation for modern privacy rights, paving the way for the court to extend sexual and reproductive liberties in other cases for decades to come.

Though the case was based on a Connecticut law that prohibited a married couple from accessing contraceptives, it legally centered on whether a person possesses what are known as unenumerated privacy rights, or rights to autonomy that aren’t specifically spelled out in the Constitution: The court was looking to clarify that area of legal doctrine following controversial court decisions decades earlier involving state restrictions on business contracts between an employer and employees.


In Griswold, which was decided by a 7-2 vote, the court held that various rights guaranteed throughout the Bill of Rights created a number of what the court called “penumbras,” or legal zones that established an inherent due process right to privacy, even if such a right were not explicitly written in the Constitution. That finding has been ridiculed by some critics ever since, specifically from conservatives who argued that the decision created broad, imaginary areas that enable “activist” judges to extend any rights they choose.

The Griswold case went on to influence several other cases involving reproduction, sexuality, and intimacy. Now, legal analysts fear that they could be vulnerable to legal challenges, under the framing of law that Justice Samuel Alito has proposed to overturn Roe v. Wade.

Here is a list of Griswold-inspired cases.

People kissed and took a photo in front of the Stonewall Inn after the announcement on the same-sex marriage Supreme Court ruling, in New York on June 26, 2015.NYT

Obergefell v. Hodges, 2015

This is the case that overturned state bans on same-sex marriage and the refusal of states to recognize legal same-sex marriages that occurred in other jurisdictions. The case centered on rights to equality but also the rights to due process to privacy that extended from the Griswold case. By a 5-4 vote, the court held that the 14th Amendment guarantees an inherent right to marry as a fundamental liberty of individual autonomy and intimacy between two people, and that the liberty should be extended to same-sex couples as equally as to opposite-sex couples. Chief Justice John G. Roberts Jr., appointed by President George W. Bush, wrote the dissent in the case, arguing that the Constitution does not address same-sex marriage, and so it was beyond the court’s jurisdiction to decide how states address it. He said that decision should be decided by the electorate. Roberts is also one of the justices who appear set to overturn Roe v. Wade. Alito, who also dissented in that case, similarly argued the Constitution does not address the rights of same-sex couples to marry, and so the matter should be decided by states.


Lawrence v. Texas, 2003

This case overturned Texas’s “Homosexual Conduct” laws forbidding two persons of the same sex to engage in intimate sexual conduct, thereby granting a right to sexual intimacy. The case originated after Houston police, in response to a call of a weapons disturbance, entered John Lawrence’s apartment and saw him engaging in sex with another man. The decision, by a 6-3 vote, found that the Texas law violated Lawrence’s right to due process to liberty and privacy, protected by the Constitution. The ruling effectively overturned a 1986 case, originating out of Georgia, that found there was no constitutional protection for acts of sodomy, and that the matter should be left to the states. In the Lawrence case, the court found that Lawrence and his partner were free as adults to engage in intimate acts without government intervention.


The front line of the March for Women's Lives rally, organized by the National Organization of Women in Washington, D.C., on April 5, 1992.Mark Reinstein/Getty Images

Planned Parenthood v. Casey, 1992

This case affirmed the right to abortion in Roe v. Wade, and strengthened the privacy foundations laid out in that decision, yet it also set new parameters for deciding state restrictions in future cases. Planned Parenthood challenged Pennsylvania abortion restrictions in the late 1980s that required a 24-hour waiting period before an abortion procedure can occur, parental consent for a minor seeking abortion, and that a married woman notify her husband that she intended to abort her fetus. In a divided 5-4 ruling, the Supreme Court upheld most of Pennsylvania’s restrictions but also upheld Roe v. Wade. The justices set a new standard for reviewing the legality of future abortion laws, to hold that states cannot enact an “undue burden” or “substantial obstacle” in the path for a person seeking an abortion before the fetus is viable.

Norma McCorvey, Jane Roe in the 1973 court case, left, and her attorney Gloria Allred held hands as they leave the Supreme Court building in Washington on April 26, 1989.J. Scott Applewhite

Roe v. Wade, 1973

This is the landmark case that affirmed a right to abortion, and it was based on the plaintiff Jane Roe’s (fictional name) claim, similar to Griswold, to personal privacy guaranteed by multiple amendments of the Constitution. The case challenged Texas’s law banning abortion in all cases other than by a doctor’s orders to save a woman’s life. In a 7-2 decision, the court held that the due process clause of the 14th Amendment is a fundamental privacy right that extended to a person’s choice over whether to have an abortion. The court did find that the right must be balanced against a government’s interests in protecting women’s health and protecting the “potential for human life” — a calculation that changed though the course of pregnancy — but the court held that the Texas law as written violated that right.


Loving v. Virginia, 1967

This case was mostly based on equal protection rights, but it came two years after the Griswold decision, and similarly upholds a due process right to liberty against government intrusion. The case involves the 1958 marriage of Mildred Jeter, a Black woman, and Richard Loving, a white man, in Washington, D.C. The couple returned to their home state of Virginia and was subsequently charged under a state law banning interracial marriage. They were sentenced to a year in jail, though the judge agreed to suspend the sentence if the Lovings left Virginia and vowed to not return for 25 years. In a unanimous decision, the Supreme Court found that the Virginia law had no purpose “independent of invidious racial discrimination.” The court also upheld the personal freedoms of the Lovings to marry.

Source: Oyez, a law project from Cornell University’s Legal Information Institute, Justia, and the Illinois Institute of Technology’s Chicago-Kent College of Law.

Milton J. Valencia can be reached at milton.valencia@globe.com. Follow him on Twitter @miltonvalencia and on Instagram @miltonvalencia617.