Communists, Contraception, and the Constitutional Right to Privacy in the Cold War

In Griswold v. Connecticut, the United States Supreme Court famously struck down a nineteenth-century Connecticut state law banning the use of contraceptive devices, including by married couples. ¹ Though legally innovative, the June 1965 ruling was remarkably traditional, carefully affirming the fundamental importance of marriage and the family to American society. Justice William O. Douglas’s majority opinion articulated a new “right to marital privacy [emphasis added],” which he found in the “penumbras” of the , straddling the First, Third, Fourth, Fifth, and Ninth Amendments.² To be sure, Douglas and the six justices who joined his opinion relied upon ample precedent that had long assumed an ill-defined right to privacy, but Griswold represented “the first time the Court gave privacy a constitutional guarantee.”³ Why did the Court create and explicate this fundamental right then, and why in a case involving contraception, sex, and marriage, rather than the many contemporaneous cases involving government surveillance or communist subversion—especially in the midst of the Cold War?

In fact, it is the political culture of the Cold War, and the prevailing anticommunist consensus that located the nuclear family and its private home at the heart of American freedom, which best accounts for Griswold and the constitutional right to privacy. In this tumultuous period, political leaders and ordinary Americans came to define and champion their democracy in contradistinction to the USSR and its intrusions into the lives of Soviet citizens. Paradoxically, the American family home’s essential privacy and security endowed it with a similarly crucial public function: the “United States would win the cold war,” this political logic dictated, “because it produced the most satisfying home life.”⁴ In this era of global ideological conflict, the right to privacy was expressed in “the sacred precincts of marital bedrooms”—for that was where, statesmen, civil liberties advocates, and judges worried, totalitarian impulses threatened to take root and needed to be overcome.⁵

In the mid-twentieth century, as the United States battled the Nazis and, immediately thereafter, the Soviets, Americans adopted a deeply felt “fear of the state.”⁶ In particular, this antistatism—advanced most fervently by a resurgent conservative movement but also shared by many postwar liberals—coalesced around “familial privacy.”⁷ As Cold War tensions escalated, American citizens came to believe that communism posed an existential threat to their way of life and, above all, they “feared what they perceived would be the inevitable destruction of family life as communist leaders sent fathers to factories or the army, mothers to work outside the home, children to indoctrination schools, and babies to communal care centers.”⁸ As these attitudes and anxieties took hold in American political, social, and cultural life, it was “the image of an idealized family,” jeopardized and imperiled, that resonated most strongly.⁹

Warner Bros. and the Department of Defense jointly produced this educational short film about the dangers that communism presented to the American family. In 1962, it was broadcast on national television and distributed for use in American schools. The film was also known as “Freedom and You.”

It is all the more striking, then, that, in the 1950s and ’60s, the federal government increasingly intruded upon familial privacy, even as it simultaneously championed the image of the inviolable home. These contradictory aims both found expression in the Federal Civil Defense Administration (FCDA), established by President Harry S. Truman in 1951 to help families prepare for impending nuclear attack. Civil defense programs, from school-time duck and cover drills to do-it-yourself home nuclear fallout shelters, “asked ordinary citizens to become partners in the nation’s defense,” providing the family with a new civic responsibility and role in the postwar national security state.¹⁰ Ironically, even as men, women, and children mobilized to protect their homes from outside forces by incorporating civil defense into their daily lives, they necessarily participated in and furthered “the militarization of…family life.”¹¹

This educational film, starring “Bert the Turtle,” was funded by the Federal Civil Defense Administration. Beginning in 1952, it taught hundreds of thousands of school children nationwide to “duck and cover” in the event of a nuclear attack.

Even as they expanded the FCDA, government officials worried that “federally financed plans…too closely resembled Soviet-style ‘big government,’” so, instead, American civil defense was privatized through the family and “mediated through the language and institutions of postwar domesticity,” simultaneously reinforcing that traditional domesticity and provoking an unprecedented invasion of family life.¹² If, during World War II, soldiers had been motivated to “figh[t] for the American family,” which they had seen “as the object-prize of military struggle,” in the 1950s and ’60s, the family was transformed into “the engine and soldier of the battle itself.”¹³ During the Cold War, the nuclear family was not only the site of preparation for atomic warfare, but was also deployed as a rhetorical and substantive “defense against political subversion, gender and sexual deviance, and myriad social problems.”¹⁴

More “Civil Defense” Multimedia Resources

• “Civil Defense Photographs, 1951-1961,” Records of the Office of Civil and Defense Mobilization, 1947-1962, National Archives.
• “Civil Defense Scenes,” ca. 1950, Motion Picture Films from the Army Library Copy Collection, 1964-1980, Records of the Office of the Chief Signal Officer, 1860-1985, National Archives.
• “Vintage Atomic and Nuclear Films” YouTube Playlist.

Historian Elaine Tyler May’s Homeward Bound: American Families in the Cold War Era (1988) perhaps best explains this social and political reality. “Containment,” May argues, was not only a foreign policy strategy designed to combat the Soviet Union and quell the international spread of communism, but also an “overarching principle” that guided ordinary Americans’ “personal and political lives.”¹⁵ Following the trauma and upheaval of the Great Depression and World War II, and facing the omnipresent threat of nuclear war, middle-class men and women yearned for “secure jobs, secure homes, and secure marriages in a secure country.”¹⁶ They invested the suburban home and the nuclear family with new normative significance, linking “domestic tranquility” with the promise of a safe, prosperous future.¹⁷ At the same time, they feared the family was “particularly vulnerable,” endangered by foreign and domestic communists and also by the very abundance and freedoms that typified modern American life: “secularism, materialism, bureaucratic collectivism, and consumerism.”¹⁸Thus, the home prescribed and produced by domestic containment was a “self-contained home” that could “protect them against themselves.”¹⁹

In this way, containment “fueled conformity to the suburban family ideal.”²⁰ According to May, this was best exemplified by the so-called “Kitchen Debate” held in 1959 between Vice President Richard Nixon and Soviet Premier Nikita Khrushchev. As the two leaders toured the American National Exhibition in Moscow, inspecting model homes stocked with washing machines and state-of-the-art refrigerators, “Nixon insisted that American superiority in the cold war rested not on weapons, but on the secure, abundant family life of modern suburban homes.”²¹ To Nixon and other Cold Warriors, the suburban home attested to the thriving American Dream, and rendered the “worrisome developments” of the mid-twentieth century, “like sexual liberalism [and] women’s emancipation,” innocuous and palatable.²² “Contained” within the family home, “[s]ex would enhance marriage, emancipated women would professionalize homemaking, and affluence would put an end to material deprivation.”²³ These broader trends would not compromise but strengthen the nuclear family and would improve Americans’ quality of life—and enable American victory in a Cold War understood to be a global contest between two opposing lifestyles.

Americans came to understand birth control—the matter at hand in Griswold v. Connecticut—through this same geopolitical lens. On the one hand, the mid-twentieth-century witnessed a massive “baby boom,” accompanied by “an intense and widespread endorsement of pronatalism—the belief in the positive value of having several children.”²⁴ For postwar parents, multiple children provided “a means of replenishing a world depleted by war deaths” and of “demonstrat[ing]…loyalty to national goals” and “express[ing] civic values.”²⁵ On the other hand, the birth control movement—which, by definition, aimed to limit family size—“gained momentum” in the postwar decades.²⁶ The Planned Parenthood Foundation of America (PPFA), the most prominent birth control organization at the time (and now), emphasized the importance of “mutual sexual enjoyment”—without fear of an unintended pregnancy—to happy, durable marriages and to American society.²⁷

In the early decades of the Cold War, as voters came to view birth control more favorably—and even as an “ethical imperative”—many states began to legalize contraceptive devices and drugs, including diaphragms, intra-uterine coils, and “the pill,” first approved by the Food and Drug Administration in 1960.²⁸ Connecticut remained a rare holdout. It was in this context that the Planned Parenthood League of Connecticut and its new executive director, Estelle Griswold, began to develop a novel civil liberties approach to birth control that emphasized marital and familial privacy. The strategy resonated strongly with the national PPFA, the American Civil Liberties Union, and an American public and judiciary preoccupied with the Cold War and anti-totalitarianism.

In this video produced by Planned Parenthood, Sue Hessel and Mary Dodge remember their mother, Bea Hessel, who worked with Estelle Griswold at the Planned Parenthood League of Connecticut.

The legal strategy’s first national test arrived in 1961, as the Supreme Court adjudicated Poe v. Ullman. The appellants attempted to challenge the same Connecticut law that would be overturned four years later, but—for now—the Court held that they did not have sufficient standing to sue.²⁹ Nonetheless, the case was instructive, as amicus curiae briefs and the attorneys themselves began to outline arguments that decried looming totalitarian threats and highlighted the centrality of marriage and the family to American culture and society. The appellant’s brief, for example, asserted that “[w]hen the long arm of the law reaches into the bedroom and regulates the most sacred relations between a man and his wife, it is going too far.”³⁰ Restricting contraception usage in this way, and thus prescribing abstinence, jeopardized “satisfactory marital adjustment” and “stable family life,” endangering “the social order” and “the mental health of the nation.”

Though the plurality declined to weigh in on the merits of the case, Justice Douglas’s dissenting opinion registered his opposition to the Connecticut law. Notably, he argued not only that familial privacy “is implicit in a free society,” but also that the invasion of such privacy is a distinctive, defining feature of a totalitarian state.³¹ Douglas forcefully asserted that if  “search warrants [were] issued and officers appeared in bedrooms to find out what went on” and the state were to “ente[r] the innermost sanctum of the home,” it would challenge America’s essential democratic character.³²

Griswold’s attorneys also made clear that they were not interested in defending sexual intimacy in general, but only specifically marital relations. Quoting Justice John Marshall Harlan’s dissent in Poe, their brief declared, “‘It is one thing when the State exerts its power either to forbid extramarital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.’”³³ This distinction found expression in Douglas’s opinion for the 7-2 majority, which concluded:

For the Supreme Court, it was marriage in particular that was sacred and required protection in order to safeguard American liberty and the nation’s particular “way of life.”

Though the constitutional right to privacy has since expanded to encompass abortion and same-sex marriage, the initial decision in Griswold was rather conservative in nature—in fact, the essential differences between a civil liberties approach to privacy and competing legal strategies premised on equality grounds or the fundamental right to dignity may help us comprehend some of the ongoing controversy surrounding these contemporary legal issues. This disjuncture comes into greater focus when we understand Griswold as a product of and a response to the Cold War and the particular ways in which anticommunism sanctified marriage and the nuclear family.