One of the many fascinating threads from the Constitutional Law panel at AALS on Griswold was the connection between the contraception cases and poverty law. Cary Franklin spoke about the under-remembered aspect of Griswold as a poverty law case. Griswold, after all, involved a birth control clinic: it was not just about access to birth control, but about the ability of poor women to access birth control. Prior to the Griswold decision in 1965, Connecticut and other states selectively enforced birth control laws against clinics, leaving wealthier women and couples free to violate the law with the help of their doctors. Although the Court downplayed this aspect of the case, Franklin argued that the case should be read in the context of its time, when the Court was repeatedly challenging barriers to access for the poor to basic rights and social inclusion, including the rights to vote (Harper, 1966), to counsel in criminal cases (Gideon, 1963), to court transcripts (Griffin, 1956), and to travel (Shapiro, 1969). It also occurred, I would add, in a time of increased federal legislative and administrative commitment to access to medical care for the poor (Medicaid, Community Health Centers) and to programs that supported child-rearing such as Head Start.
Also on the panel, Melissa Murray discussed the forgotten contraception case of Trubek v. Ullman. Trubek was a parallel case to Poe v. Ullman and Doe v. Ullman, where the Court punted the topic to its future self by holding the challenges non-justiciable. While Poe and Doe presented claims for contraceptive rights within traditional marriages, Trubek presented contraception as a component of a professional woman’s control over child bearing decisions and ability to work with her husband to balance work and family obligations. Louise Trubek and her husband David were students at Yale Law School, and they made these issues central to their complaint, which the Connecticut Supreme Court had noted. As Murray pointed out, the combined nature of liberty and equality claims was more fully apparent in Trubek than in either Poe or Griswold.
Although Trubek did not, on its face, involve issues of poverty, for scholars and practitioners of poverty law it most certainly did: Louise Trubek (now a Professor Emerita at Wisconsin Law School) has long been a leader in the field of poverty and public interest law (the casebook she co-authored with Julie Nice helped many of us teach Poverty Law through the post-welfare reform years of the 1990s and early 2000s). As Trubek herself discusses, the Connecticut litigation was specifically aimed at opening birth control clinics to serve the poor. For women in poverty, the ability to plan child-bearing greatly increases their chances to escape poverty through paid labor. The life-long social justice concerns that inspired Louise and David Trubek to join the litigation epitomized the intersection between gender and class justice that Cary Franklin argues has been lost from the popular history of Griswold. By recovering this history, we may be reminded just how intertwined are the problems of class and gender freedom and equality, and how the de-emphasis of class discourse in constitutional law has inhibited gains in freedom and equality for women generally.
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