In the work I have done over the last forty years to end violence against women as an attorney, victim advocate and originator and facilitator of My Avenging Angel WorkshopsTM, I have come to realize how important it is for women, particularly those who have experienced violence, abuse and trauma, to have their privacy rights protected, supported and respected in our society.
GUARANTEE OF PRIVACY FOR ASSAULT VICTIMS
Without that guarantee of privacy, victims of domestic violence, sexual assault and child abuse may not step forward to report what has happened to them or seek protection in a criminal court or relief in a civil one that could save their lives and that of their children. For them, privacy means that their names will not appear in a newspaper in print or on-line as a sexual assault victim and if they testify as the victim of a sexual assault in court, their prior sexual history with others beside the defendant will not brought up in that criminal case. As a victim of sexual assault or domestic violence, any communications they have with a crisis intervention counselor or therapist will be protected as a privileged, confidential communication. Furthermore, any services funded by the federal and state governments would guarantee that the programs funded will ensure that the privacy rights of their clients will be protected.
But over the years, I have found that putting in place these kind of privacy rights for victims of sexual assault and domestic violence is not easy, and in most cases, they have only come as recent, hard-fought legislative victories.
STATE LEGISLATIVE VICTORIES
For example, it is only since the late 1970s and early 1980s that most states in the United States have adopted a Rape Shield Law, mentioned above, that protects a women’s prior sexual history with others being brought up on a criminal prosecution of a sexual assault. I helped pass a Rape Shield Law in the Connecticut state legislature in 1983. The federal Violence Against Women Act of 1994 (VAWA) established a federal rape shield law and the military afterward a similar law was added to the Military Rules of Evidence, Rule 412. I also worked to pass a law in Connecticut in 1983, one of the first in the country, to guarantee privileged communications between a victim and a domestic violence or sexual assault crisis center counselor.
While all these state laws are now on the books, they could be changed or substantially weakened by the same legislative bodies that passed them. The same is true for other guarantees that are often provided in a complex maze of privacy laws and regulations, state and federal constitutional rights including state crime victims’ rights amendments and statutes. But for a victim of domestic and sexual violence, the need for autonomy and control over her body, the private details of her life, and the decisions that must be made relative to the assault (including whether and how to assist with a criminal prosecution) are essential to her healing and recovery. Safety from a future attack is also essential to victims.
So it was with trepidation that I read the majority opinion of the United States Supreme Court written by Justice Sam Alito in Dobbs v. Jackson Women’s Health Organization. The decision was issued on June 24, 2022 (after a draft of this opinion had been “leaked” earlier to the public) that overturns Roe v. Wade, the Court’s 1993 decision governing the right to an abortion in this country.
Current Threat to the Right to Privacy
Given that Roe was decided as part of a string of Supreme Court decisions starting with Griswold v. Connecticut in 1965 that found a right to privacy under the federal constitution, the majority opinion in Dobbs, in fact, challenges the privacy right underpinning the Roe decision. It reasons that the right to abortion is not an “enumerated right” in the constitution and not “deeply rooted in this nation’s history and tradition.” The same, it could be argued, could be true about the right to contraceptives, same-sex marriage and interracial marriage, all the other Supreme Court cases that now uphold those rights on the basis of privacy. Justice Clarence Thomas in his concurring opinion in Dobbs draws this cases into jeopardy with the exception of the interracial marriage decision even though Justice Thomas is a black man married to a white woman. (See list of those cases at the end of this blog article.)
With the decision in Dobbs, I was reminded of an article I wrote a number of years ago when attorney Catherine Roraback was still alive. On assignment from a local women’s magazine, I interviewed her about Griswold v. Connecticut, the case she litigated on behalf of the plaintiffs.
Below here is that article first published in 2003 from my own interview with Attorney Roraback and what she told me about how the case that led to the Supreme Court’s ruling in Griswold v. Connecticut came about and why it was, in that moment as well as today, an important victory for the right to privacy in this country.
“If an important case arose, I got involved, and I don’t remember saying no.”
-Attorney Catherine Roraback
There is much history in Canaan, Connecticut, a town founded in 1738 in the magnificent foothills of the Berkshire Mountains. Historic markers dot the landscape along Route #44 and tell of a region where ironmaking was once a major industry.
But there is history there too with Attorney Catherine Roraback, who, as a young lawyer ten years out of Yale Law School, plead the case of her lifetime, Griswold v. Connecticut, a landmark 1965 United States Supreme Court decision.
Griswold established a constitutional right to privacy and struck down a Connecticut law making it a crime for any person to use or counsel others to use contraceptives. The case paved the way for the Court’s 1973 decision in Roe v. Wade, which found that this right to privacy included a woman’s decision whether or not to terminate her pregnancy, and Lawrence v. Texas, the Court’s most recent ruling that extended this right to allow consenting adults to engage in private sexual relations with same-sex partners.
At the age of 82, Roraback is semi-retired but still practices law part-time in a modest one-story white frame building on Canaan’s Main Street where her grandfather established his practice in 1873. She still speaks passionately of the issues that Griswold represented and what she has to say is, as always, controversial. “I always thought it was unfortunate,” she says, “that the Griswold case was decided on the right to privacy. But at the time, privacy was a big issue.”
“The first Sputnik had gone up in space,” Roraback explains, “and there was the U-2 incident where an American spy plane was shot down over Soviet air space. People suddenly realized that an airplane thousands of feet above them could take very invasive pictures and nothing was secret anymore. Their business was now somebody else’s business.”
People’s attitudes about sexuality were also changing. Married couples from Connecticut were traveling to Planned Parenthood clinics in New York and Rhode Island to obtain birth control. Single women went there too, Roraback recollects, inventing spouses in order to get contraceptives. The Connecticut state health department did allow some devices like condoms to be sold if labeled for the prevention of sexually transmitted diseases.
With changing attitudes and growing privacy concerns, Planned Parenthood tried repealing the law that was only being enforced against its clinic. But Roraback explains, “the legislative hearings on these bills were vicious and actual fist fights would occur.”
After one of the more rancorous hearings in 1957, Estelle Griswold, then Executive Director of Connecticut’s Planned Parenthood, got Doctor C. Lee Buxton, the clinic’s medical director, together with Professor Fowler Harper of Yale Law School at one of her cocktail parties.
“I’ve always said,” Roraback laughs, “that it was over one of her martinis, which were powerful instruments, that the two of them decided to initiate the litigation.”
Roraback was invited to join the legal team by Fowler Harper in 1958. “I was in solo practice and not making a big living,” she says. “At that time, most people with legal problems went to a man and I was doing a lot of community work dealing with controversial issues, so Fowler called me up and said, ‘You deserve a good case. Do you want this one?’ I said, ‘Sure.’”
After four years of unsuccessful litigation to have the Connecticut law declared unconstitutional when the Poe v. Ullman case was dismissed by the United States Supreme Court on a technicality, the Connecticut chapter of the Planned Parenthood League decided to challenge the law directly and opened its first clinic in 1961.
Roraback arranged for the surrender of the defendants with the city prosecutor so that the clinic’s patient files would not be confiscated by the police in the process and handled the case in the lower state courts from arrest through the appeals in the Connecticut Supreme Court. Then she and Tom Emerson, another Yale Law School professor and a constitutional scholar, worked together on the brief to the United States Supreme Court and Emerson argued the case before the high court.
“From the moment we started the defense in city court, we raised the privacy issue. We would’ve been crazy if we hadn’t,” Roraback says.
Four years earlier in Poe v. Ullman, two Supreme Court Justices had written about a constitutional right to privacy in dissenting opinions and one of these Justices was William O. Douglas who later wrote the majority opinion in Griswold.
But in the state courts, Roraback also argued for a broader right which she calls “the right to life.” This argument, Roraback explains, “represents a difference between the idea that the government should butt out of our affairs which is our right to privacy and a more expansive concept that we have a right to live our lives as we choose without governmental interference. For example, in Griswold I argued married people have a right to have sexual intercourse without the government being involved in whether they conceive children or not.”
“I always felt that if we had been successful on this broader argument, it would have changed the whole dialogue on the abortion issue for the last forty years,” Roraback contends. “It would have been clearer that women have the right to control their own bodies without the government being involved. But then we wouldn’t have had the Lawrence decision based on the right to privacy this year.”
Roraback went on to litigate Women v. Connecticut, the state’s counterpart to Roe v. Wade which struck down Connecticut’s anti-abortion statutes. “People think that Roe v. Wade came out of the blue but there were cases all over the country challenging the abortion laws,” Roraback says. “It was all part of the women’s movement in the 1970s. That was because women were being so repressed by these laws that they were unable to protect themselves.”
Roraback is shocked that young women today don’t know this history. “They don’t understand what women faced,” she asserts. “Women who tried to abort themselves and women who went to the illegal abortionists because of the desperation of their situations.”
But unless women are concerned about returning to this kind of predicament, Roe v. Wade will be lost, Roraback believes. “Yet even if that’s true, a hundred years from now you’ll have another case like Roe v. Wade,” she says. “Because what you have to do is keep on fighting. You just don’t stop.”
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This blog article was updated on June 24, 2022 the day of the USSC decision in the Dobbs case overturning Roe v. Wade.
A portion of this blog originally appeared in 2003 in the WOMAN magazine in Hartford, Connecticut, four years before Attorney Roraback passed away. She was inducted into the Connecticut Women’s Hall of Fame in 2001. Hear more here about this historic figure!
The History and Legacy of Griswold v. Connecticut
Poe v. Ullman, decided in 1961
The Court dismissed constitutional challenges to Connecticut’s law prohibiting the sale and use of contraceptives because the law was not being enforced but Justices Douglas and Harlan write influential dissents that the law violated the U.S. Constitution on the basis of a right to privacy. The argument is made and won more successfully by Catherine Roraback and Thomas Emerson in Griswold v. Connecticut four years later.
Griswold v. Connecticut, decided in 1965
The Court recognized for the first time a constitutional right to privacy in a case brought by Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut and C. Lee Buxton, a licensed physician and Yale Medical School professor who served as Medical Director of the League’s New Haven clinic. The clinic, which gave information, instruction, and medical advice to married persons as to the means of preventing conception, was opened and operated from November 1 to November 10, 1961, when Buxton and Griswold were arrested. The Court ruled that the Connecticut law forbidding use of contraceptives “violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights.” Justice William O. Douglas, writing for the majority, held that, the rights people have are more than what can be read in the explicit language of the Constitutional text.
Loving v. Virginia, decided in 1967
The Supreme Court ruled unanimous in favor of the Loving family, a white man and a woman of color whose marriage was not only recognized in Virginia but also subjected to criminal penalties including up to five years in jail. The Court, observing that laws against miscegenation were “designed to maintain white supremacy,” found there was no legitimate overriding purpose independent of invidious racial discrimination which justified this classification. Therefore, it ruled there was no doubt that restricting the freedom to marry solely because of racial classifications violated the central meaning of the Equal Protection Clause of the Fourteenth Amendment.
Roe v. Wade, decided in 1973
The Court voided laws forbidding abortions in nearly every state by striking down a Texas law prohibiting abortions except to save the mother’s life. Justice Blackmun, writing for the Court’s 7-2 majority, found that the right to privacy includes the right to an abortion. The two dissenting Justices White and Rehnquist, who is still a member of the Court, would champion the cause against Roe v. Wade for more than twenty years to come.
Lawrence v. Texas, decided in 2003
The Court traced a line of cases beginning with Griswold and including Roe v. Wade that have provided an ever-expanding right to privacy. For example, in 1972 Eisenstadt v. Baird allowed the sale and distribution of contraceptives to unmarried persons and then in 1977, Carey v. Population Services International extended that same right to minors. The Court further expanded the right to privacy in this case by striking down a Texas sodomy law and permitting consenting adults to engage in private sexual relations with same-sex partners without fear of criminal prosecution.
Obergefell v. Hodges, decided in 2015
Michigan, Kentucky, Ohio, and Tennessee defined marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners were deceased, filed suits in federal district courts in their home States, claiming that state officials violated the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each district court ruled in petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed. The United States Supreme Court held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-date