The Griswold Gambit?

In 1965, the U. S. Supreme Court, in the case of Griswold v. Connecticut, ruled unconstitutional a 1879 Connecticut statute that outlawed the use of contraception. Although constitutional law scholars often discuss the case in terms of its logic and holding, they rarely do so with an eye toward the statutory language that the Court held was in violation of the Constitution. For this reason, these scholars, not to mention their students and their readers, often miss the underlying rationale of the decision, which may shed light on contemporary legal disputes about the same subject matter.

Take, for example, the case for which the Supreme Court has agreed to hear oral arguments on March 25, Sebellius v. Hobby Lobby Stores, Inc. This case involves whether a for-profit family-owned business may be forced by the federal government to directly pay for abortion-causing drugs and devices in their employee health plans when their religious beliefs require that they not directly (either formally or materially) cooperate in any way with the taking of nascent life at any point in its development.  (Although this is technically not a contraception case, since the Green Family is objecting to abortifacients and not drugs or devices that prevent conception, Griswold still applies, for the government, in its response, does not make that distinction.)

Because the 2010 Affordable Care Act (ACA) empowers the Secretary of Health and Human Services (HHS) to issue such orders, the “law” that Hobby Lobby claims violates its religious liberty arises not from an actual statute resulting from the sustained and careful deliberations of a popularly elected legislative body, but rather, it descends from the judgment of one unelected head of an administrative agency. This is why, if one does an internal search of the ACA and its Reconciliation Act one will discover that the term “contraception” appears four times, “contraceptive” once, “birth control” zero, and “Secretary shall” 1008, with none of the references to the first two concerning the “law” that Hobby Lobby is challenging.

In order to grasp the significance of this for religious liberty, imagine that the National Rifle Association, rather than Planned Parenthood, was helping advise the Secretary of HHS in creating regulations for the ACA. Believing that self-defense saves lives, and that an armed citizenry advances that good, the NRA convinced the HHS secretary to require all employers to include in their employee health care plans two free firearms, including free bullets, depending on need. Quaker families that own for-profit businesses object on the grounds that it would involve them in directly providing instruments of war to their employees, in clear violation of their pacifist beliefs. The Quakers suggest that the government itself can give these weapons directly to the employees without involving the Quaker business owners in the activity. The government, showing no respect or understanding of the rich theological tradition of the Friends, responds by suggesting that the Quakers are anti-self-defense and don’t believe in “saving lives.” In fact, the government says that the Quaker business owners’ resistance to the HHS mandate is equivalent to banning their employees from defending themselves against criminals.

What does all this have to do with Griswold and the statute it overturned? More than you may think. Here’s the text of the Connecticut statute and the punishment for those who violate it:

Any 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.
Any 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.
In overturning this Connecticut statute, the Court said that the 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.”
And the way in which Connecticut enforced its control was to punish not only the person who is engaging in the banned activity, but anyone “who assists, abets, counsels, hires, or commands another” to commit the offense. To use the language of Catholic moral theology, the statute included in its scope those whose material cooperation was so proximate to the act that no one would think it strange to say that they are accomplices to the forbidden activity.

So, when the Court said that there is a Constitutional right to use contraception – that is, one had the legal power to either use or not use contraception – that right extended to anyone “who assists, abets, counsels, hires, or commands another” to engage in the activity. Thus, in the case that the present Court will hear on March 25, it may secure the rights of the Green Family, the owners of Hobby Lobby, by simply referring to Griswold and stating that the HHS Secretary’s order has invaded that area of protected freedom known as religious liberty. 

Francis J. Beckwith is Professor of Philosophy & Church-State Studies, Baylor University, and 2016-17 Visiting Professor of Conservative Thought and Policy at the University of Colorado, Boulder. Among his many books is Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith (Cambridge University Press, 2015).