The 60^th anniversary of Griswold v. Connecticut calls for a closer reexamination of the fraught social and political context in which seven members of the Supreme Court pioneered a conceptual basis – marital privacy – for nationalizing a key element of reproductive rights, the legal access to birth control. This moment invites us to consider how privacy was a key element in elite responses to a much-broadcast, multivariate emergency involving female sexuality and reproduction. It also invites us to plumb the ways reproductive privacy and reproductive shame were intertwined in this legal milestone, in the 1960s. Feminist reproductive rights activism helped make Griswold possible, but privacy rights were imbued with racial meanings from the outset.

A crucial lesson of Griswold and subsequently of Roe v. Wade is that the language and structures of emergency-generated reform can benefit certain groups of people partly, even largely, because members of this group are defined as distinct from others deemed not qualified for benefits. Griswold extended the right to access birth control strictly to married women, under the logic of marital privacy. But unmarried females, or females whose marriages were suspect, especially those lacking economic resources, were excluded from the benefits of legal, privately obtained contraception – at the same time that they were punished for not controlling their fertility.

Privacy for Whom?

More generally, the Griswold and Roe decisions reflected several deep concerns, most clearly, a racialized fear of runaway female sexuality and fertility, the consequences of which, many people feared, would ruin American society. Justices, legislators, academics, physicians, and social service providers were among those who worried about the reproductive capacities of racialized and low-income women.

Sixty years later, Griswold (and Roe) illuminate some of the ways that reformist, landmark initiatives can still serve reactionary goals, stifling progress toward what we now call reproductive justice. 

The Griswold decision was dropped into a political and cultural context roiled with challenges to the traditional racial order, and commentators often explicitly tied Civil Rights movements to anxieties about “illegitimate” (and interracial) sex, pregnancy, and births. At congressional hearings on the “population crisis” in 1965, amid an intense phase of the civil rights movement’s fierce opposition to white supremacy, experts testified in Congress about these matters. These, almost exclusively white male experts, decried the relationship between “excess babies” and urban disorder, the looming population bomb, juvenile delinquency, a destructive culture of poverty, welfare abuse, air pollution, and a raft of other phenomena that they associated with the insubordinate and irresponsible reproductive behavior of Black people. Notably, political leaders such as Patrick Moynihan did not blame deindustrialization, urban disinvestment, white fear of Black citizenship claims, and other macro-factors for poverty and racial disparities.

The privacy rights of poor and racialized women were absent in these policy discussions. Throughout the hearings, elites proposed public policies and programs “to reduce the number of such [excess] children,” generally promoting strategies inimical to privacy and accepting policies that publicly singled out “inappropriately” sexual and fertile girls and women of color for punishment. For example, welfare policies at the time encouraged staff surveillance of welfare recipients’ private dwellings to extirpate the presence of male visitors, who were often husbands. Policies to address the alleged hyper-fertility of poor women also directed welfare recipients toward public clinics that performed sterilizations and prescribed birth control pills, whatever the private, fertility-management preferences of their targets. Public housing and school attendance policies that excluded “illegitimate” mothers were not a problem for the experts at the congressional hearing. In 1965, fertility-related matters justified privacy for (white) married people; and public punishment for others.

The others were the ones whom the experts publicly tagged as members of a population who were not entitled to the right to privacy.  Instead, women of color, unmarried mothers, and low-income women were constructed as objects of public shame.

Granted, the rampant uncoupling of sex and pregnancy from marriage was a wrenching factor for many Americans in the 1960s. But white “co-eds” and other unmarried white women of the era who had sex were, according to ubiquitous mass media treatments, participating in a “sexual revolution.” These white women were sometimes considered careless hedonists, perhaps, but certainly engaged in expressing their independence. While changing sexual mores were a source of public titillation, if one of these “revolutionaries” got in trouble, this was a private matter, to be quietly handled by family. Even if one of them sought a criminal abortion, secret information networks led hundreds of thousands of girls and women with resources to private, skilled practitioners each year. 

Race, Class, and Griswold’s Legacy

I have long argued that reproductive politics in the mid-twentieth century were a key focus for those determined to assign differential value to bodies, according to race. Racialized distinction-making was a central feature of the Griswold era, when laws and policies governing reproduction and intimate life responded hostilely to the calls for racial blurring at the heart of civil rights activism and the gender blurring called for by feminists. Griswold, and other fertility-related laws and policies promulgated in the mid-20^th century, served the interests of white urban, educated women who were married or soon to be married. These initiatives also generally preserved the sexual interests of men, that is they did not fundamentally disturb male supremacy. Crucially, the core concept of Griswold, marital privacy, drew – and redrew – a bold distinction between women worthy of rights and the “population” that was not worthy, leaving the latter rightless and resourceless regarding sexual and reproductive healthcare. While the privacy guarantee of Griswold created a domain in which female sexuality and fertility were associated with individual dignity, what would soon be called “choice,” these associations were lashed tightly to white, middle-class, heterosexual, conjugal culture.

In the years following Griswold, women of color faced obstacles to achieving reproductive dignity and safety that many white women did not face. These obstacles included several federal and state policy developments, including the Hyde Amendment; racially targeted sterilization practices around the country; brutally disproportionate infant and maternal mortality rates in communities of color; and other factors. The civil rights era principle at the heart of Griswold sustained racially animated animus regarding what all people require to possess sovereignty over their bodies.

The racial animus built into political discourses of privacy erected a terrible and ongoing obstacle to building a strong, enduring interracial response to the state’s never-ending use of women’s reproductive capacity as a justification for second-class citizenship.

As a foundational law, handed down during the Civil Rights movement, Griswold laid down a timid and limited principle that constructed fertility management as a private privilege, one that left millions behind, vulnerable to public punishments. In this way, Griswold was another instrument pointing the way in 1965 – on the 100^th anniversary of the end of the Civil War – to a codified two-tiered standard that used reproduction to affirm conditions for race and class citizenship in the United States.