Griswold's Criminal Law, 47
Conn. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/2543
This Symposium commemorates the fiftieth anniversary of Griswold v. Connecticut. In the fifty years since it was announced, Griswold's logic has underwritten a broader commitment to reproductive rights-one that has expanded the right to contraception and secured a woman's right to choose an abortion. Amidst these developments it is easy to overlook another aspect of Griswold's history. Griswold also was part of a criminal law reform effort that sought to reimagine the state's authority in the intimate lives of citizens and limit the use of criminal law as a means of enforcing moral conformity. In this regard, Griswold shares roots with the Model Penal Code, the Wolfenden Report, and the Hart-Devlin Debatesall of which arose in a social and legal milieu in which the question of whether the state could-or should-police intimate conduct through the criminal law was a subject of considerable debate. In overlooking this aspect of Griswold, we have obscured its historical context and, perhaps more troublingly, limited its impact in defining the extent of the state's power to regulate sex and sexuality. This brief Essay recovers this overlooked aspect of Griswold's history. In so doing, it situates Griswold in this historical debate about the scope and limits of the state's authority to police intimate life through the criminal law. As importantly, it considers the implications of this history for our contemporary efforts to expand sexual liberty.