Piper, George C.

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University of Kentucky

Kentucky Law JournalVolume 54 | Issue 4 Article 111966Constitutional Law--Connecticut StatuteForbidding the Use of Any Drug, Medicinal Articleor Instrument for the Purpose of PreventingConception Struck DownGeorge C. PiperUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Constitutional Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationPiper, George C. (1966) "Constitutional Law--Connecticut Statute Forbidding the Use of Any Drug, Medicinal Article or Instrumentfor the Purpose of Preventing Conception Struck Down," Kentucky Law Journal: Vol. 54 : Iss. 4 , Article 11.Available at: https://uknowledge.uky.edu/klj/vol54/iss4/11KENTcKy LAw JouNAL[Vl5and controlling question ... is, was his employment discontinuedvoluntarily by [claimant] ... or his authorized agent?" Despite thisemphasis on the test of voluntariness, the court refused to holdclaimant disqualified. This interjects new elements into the test ofqualification. First, the court by distinguishing the Reynolds9 casehas made it known that before an employee's voluntary acceptanceof a plan through collective acquiescence will be construed as hisown acceptance, the employee must be represented by at least atruly representative employees' association. Further adjudicationmust be had before the bench and bar will know the full extentof this requirement. Second, the court alluded to the fact that therewas no pension provided for by the retirement plan. While it isprobable that the court mentioned the absence of a pension as afactor militating against a conclusion of voluntary acceptance ofthe plan by claimant, it might well prove that the absence of bene-fits under a retirement plan will become prima facie evidence ofinvoluntary unemployment by the retired employee. It is interestingto note that a majority of the courts which have considered theissue have ruled that a retired employee receiving pension benefitsis not at the same time eligible for unemployment benefits.' 0The present law in Kentucky on the issue of a mandatorily re-tired employee's qualification under KRS 341.370(2)(c) is a com-bination of Reynolds, Kroehler, and Young. It is submitted thatwhile the court correctly decided the issue before it in the Youngcase, the loose language concerning the claimant's representationby the committeemen and the absence of a pension plan has castdoubt upon the heretofore established test of voluntariness. Anyfuture litigation to resolve the doubt could have been avoided by acloser compliance with the previously established test.William R. HarrisCONsTIrUTIoNAL LAw-CoNNEIcCuT STATUTE FoBIDING Tm USE OFANY DRuG, MEDICINAL ARTICLE OR INSTRumT FOR THE PURPOsE oFPREVmN G CONCEPTION STRuCK DowN.- Appellants Griswold andBuxton,. the Executive Director of the Planned Parenthood League ofConnecticut and the League's Medical Director respectively, werearrested as accessories for giving information and advice to marriedpersons and for prescribing the best contraceptive device or ma-9360 S.W.2d 746 (Ky. 1962).'OAnnot., 32 A.L.R.2d 901 (1953).[Vol. 54,COIM MNTSterial. A Connecticut statute made it a crime for any person to useany drug, article or instrument for preventing conception.1 Appellantscontended that the assessory statuteP as applied to them violated thefourteenth amendment. They were, however, subsequently foundguilty as assessories, and the appellate division of the circuit courtaffirmed. The court of errors then affirmed that judgment. The casewas brought on appeal to the United States Supreme Court. Held:Reversed. (6-2 opinion, Justice Clark not sitting). Delivering theopinion of the Court, Justice Douglas found that the right to maritalprivacy lay somewhere along the periphery of the Bill of Rightsand that this right is made applicable to the states by the forceof the first, fourth, fifth and fourteenth amendments. In attemptingto ground the right to marital privacy in the Bill of Rights, JusticeDouglas said: "Various guarantees create zones of privacy .... 3Thepresent case . . . concerns a relationship lying within the zone ofprivacy created by several fundamental constitutional guarantees."4Griswold v. Connecticut, 381 U.S. 479 (1965).On at least two major occasions litigation regarding the consti-tutionality of the Connecticut contraception statute had wound itsway to the Supreme Court only to see the complaints dismissedeither for want of justiciable controversy or standing.3 When, how-ever, appellants were arrested as assessories, found guilty, and finedone hundred dollars each, "that real controversy flare[d] up,"6 andthe constitutional question had to be faced. In Griswold, appellantswere not merely representing married persons who had not been(nor were about to be) injured;7 they had been injured and wereallowed to represent married persons whom they had aided andabetted in violating a statute the constitutionality of which waschallenged. Having finally surmounted the barriers of justiciable con-troversy and standing, the Court was prepared to take a giant stridetoward the invalidation of state criminal legislation.1 General Statutes of Connecticut, § 53-32 (1949).2 General Statutes of Connecticut, § 54-196 (1949).3 Three key phrases in the opinion of the Court are worthy of e. lanation.These phrases, 'zones of privacy," "penumbra," and "peripheral rights," areoften interchangeable. Technically, however, the penumbra is the partiallyilluminated area beneath either the shelter of an amendment or, perhaps, theshelter of the Bill of Rights as a unit. A zone of privacy is a specific area alongthe edge of the penumbra. And a peripheral right, for the purposes of Gris-wold v. Connecticut, lies on the edge of the zone of privacy and thus on theedge of the penumbra.4 Griswold v. Connecticut, 381 U.S. 479, 484, 485 (1965).GPoe v. Ullman, 367 U.S. 497 (1961); Tileston v. Ullman; 318 U.S. 44(1943).6 Poe v. Ullman, supra note 5, at 509.7 Compare Poe -. Ullman supra note 5, with Tileston v. Ullman, 318 U.S.44 (1943). (Continued on next page)19661KEN-mcKY LAw JouRaNA[Reaching the merits of a case that was perhaps long overdue,Justice Douglas did little more than deliver into law a positionwhich he had proffered in an earlier dissent. 8 It is well establishedthat the freedom to associate and privacy in one's associations areperipheral first amendment rights.9 Furthermore, Justice Douglasfound that the Court has safeguarded the sanctity of a man's homeand the privacies of life against all governmental invasions throughthe protection of the fourth and fifth amendments.' 0 Since the conceptof privacy has frequently been read into the Bill of Rights andextended to include the privacy of association, the sanctity of a man'shome, and even the right to marry and bring up children," JusticeDouglas was clearly justified in concluding that the right to maritalprivacy was one of those "peripheral rights [without which] thespecific rights would be less secure."'2 While the right to maritalprivacy, like other privacy rights, comes within the penumbra ofthe Bill of Rights, Douglas failed to point out the specific amend-ment under which the right to marital privacy falls. Does the Billof Rights as a unit have a single penumbra, and does the right tomarital privacy lie somewhere along the periphery of this penumbra?Or, more logically, do all (or some) of the first eight amendmentshave separate penumbras? If not all, which ones? The crucial ques-tion is ultimately this: if all (or some) of the first eight amendmentshave separate penumbras, under which ones-or one-does the rightto marital privacy fall? These are questions that the opinion neversatisfactorily answered. What force, then, has suddenly given theDouglas opinion a thrust that it never before had enjoyed?While dredging for the right to marital privacy in the Bill ofRights, Justice Douglas quite fleetly tacked along the course of theninth amendment. By providing that "the enumeration in the Con-stitution, of certain rights, shall not be construed to deny or dis-parage others retained by the people," the ninth amendment indi-cates that Justice Douglas' "zones of privacy" were truly anticipated.The ninth amendment, then, simply clinched the argument that theBill of Rights (or its amendments) contained a penumbra whichconcealed various zones of privacy. Why did Justice Douglas not saymore about the ninth amendment and thereby bring it to the forein the Court's opinion for the first significant time in such litigation?Did he only light upon it because he knew that the Court had been8 Poe v. Ullman, supra note 5.9 NAACP v. Alabama, 357 U.S. 449, 462 (1958).1oBoyd v. United States, 116 U.S. 616, 630 (1886)."1 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).'2 Griswold v. Connecticut, 381 U.S. 479 (1965).[Vol. .54,1966]steering toward the "zones of privacy" argument simply throughlogical extensions of the first eight amendments anyway? Or did hemerely elect to recede into the judicial background and permitJustice Goldberg to carry the argument along?To the delight of at least one legal scholar,'3 Justice Goldberg,whom the Chief Justice and Justice Brennan joined, rendered a de-tailed reading of the ninth amendment. Without the Goldbergopinion the application of the ninth amendment in the Court'sopinion palls upon the ear of an inquisitive legal mind. In notingthat the Court has found fundamental personal rights and libertiesprotected by the due process clause of the fourteenth amendmentfrom impairment by the states,' 4 and that these rights include even"the right . . . to marry, establish a home and bring up children," 5Justice Goldberg stated that a fair interpretation of the ninth amend-ment is really the constitutional fountain from which all such rightsflow: "The Ninth Amendment simply shows the intent of the Con-stitution's authors that other fundamental personal rights should notbe denied such protection or disparaged in any other way simplybecause they are not specifically listed in the first eight amend-ments."16 The right to marital privacy, then, falls within a penumbraof the Bill of Rights. But does this right fall within a penumbra ofthe Bill of Rights as a unit, or does it fall within the penumbra ofa specific amendment? In saying that "my conclusion that the con-cept of liberty is not so restricted and that it embraces the right ofmarital privacy though that right is not mentioned explicitly in theConstitution is supported by numerous decisions of this Court . . .and by the language and history of the Ninth Amendment,"' 7 Jus-tice Goldberg indicated that the right to marital privacy falls withinthe penumbra of the fifth amendment. While the fourth, and per-haps even the first, may be extended to include various privacy rights,the ninth amendment encourages the Court to read the fifth amend-ment more liberally and to find that the concept of liberty withinthat amendment contains a penumbra under which the right tomarital privacy lies. The question now becomes this: Is Justice Gold-berg's holding that the Connecticut statute violates the fifth amend-ment as it is incorporated into the fourteenth amendment in align-ment with the holding of the Court?13 See Redlich, Are There "Certain Rights ... Retained By the People," 37N.Y.U.L. Rev. 787 (1962).14GiloV v. New York, 268 U.S. 652, 666 (1925).15Meyer v. Nebraska, 262 U.S. 390, 399 (1923).16 Griswold v. Connecticut, 381 U.S. 479, 492 (1965).17 Id. at 486-87.KENTUcKY LAW JOURNALIf the Goldberg reading of the Court's opinion were a properclarification of the fuzzy holding of the Court, a significant pro-jection of Griswold might well be made. Contrary to dictum inthe Court's opinion, invalidation of a state's regulation of the manu-facture and sale of contraceptives, for example, might become pos-sible. State legislation compelling the sterilization of recidivisticsexual offenders (especially those who are married), moreover, mightnever be constitutionally acceptable. And, again contrary to dictum,state statutes prohibiting miscegenation might be struck down. ButJustice Goldberg's reading of the Court's opinion is clearly too nar-row. Although Justice Douglas failed to locate the right to maritalprivacy in a specific amendment, he indicated that he dealt not withjust a right to marital privacy but with a right to "privacies of life,"18and such privacies might well be derived from the penumbra of eachand every amendment. If this is the proper reading of the Court'sopinion, the results could be cataclysmic. First, the surge of theninth amendment is forestalled because, rather than encouraging abroad reading of the liberty concept in the fifth amendment, itsimply is just another sentence in the Constitution that allows theCourt to see the privacy concept in the first, fourth, fifth, and per-haps other amendments-a vision that the Court had had withoutthe aid of the ninth amendment. Instead of toughening up theliberty concept in the fifth amendment, the ninth amendment there-fore becomes nothing more than one of number of guidelines in aparticular case. Secondly, the holding becomes so broad and un-wieldly that it will prove inapplicable when the Court is facedwith finding a "privacy of life" other than a marital privacy in theBill of Rights. If, for example, the Court were faced with the problemof invalidating a state criminal statute which invaded a first amend-ment privacy, Justice Brennan and Chief Justice Warren (to saynothing of Justice Stewart, who dissented in Griswold) might wellbe unwilling to invalidate such a statute under Griswold for tworeasons. First, Griswold does not clearly hold that the Connecticutstatute violated the first amendment. And, secondly, they "havenot accepted the view that the 'due process' as used in the Four-teenth Amendment includes all of the first eight Amendments." 9 But,by joining Justice Goldberg, they have accepted the view that thedue process of the fourteenth amendment totally incorporates theexplicit rights of the fifth amendment and all other rights that areimplicitly contained in that amendments liberty concept. There-18 Boyd v. United States, 116 U.S. 616, 630 (1886).19 Griswold v. Connecticut, 381 U.S. 479, 486 (1965).[Vol. 54,CoNOM-rsfore, if the opinion of the Court had been more closely alignedwith the somewhat more narrow opinion of Justice Goldberg (anopinion which, incidentally, should surely be less distasteful to Jus-tices White and Harlan), the hypothetical statute which, as men-tioned above, invaded a seeming first amendment privacy mightwell be found to invade the liberty concept of the fifth amendmentas broadened by the ninth amendment.For its failure to locate the right to marital privacy within thepenumbra of a specific amendment, the Court's holding may proveto be too unwieldly to be useful in future litigation. But, while thisonission causes an incomplete utilization of the ninth amendment,the Court's holding that the right to marital privacy lies somewhereon the periphery of the Bill of Rights will perhaps prove to be quitestrong in itself, for marital privacy encompasses a multitude offundamental privacies that have heretofore gone unrecognized. Mari-tal privacy, however, has become a unique right, one separatefrom a greater right-"the right to be let alone.":'2 It seems that theCourt's opinion may have laid the groundwork for the future interpre-tation that the right to be let alone was the right which was actuallyinvaded in Connecticut.George C. PiperTonTs-LnirrAION OF ACmIONS-EsTrOPPEL.- Appellants were involvedin an automobile collision with appellee's insured. An insuranceadjuster, appellee's agent, visited appellants three times within thenext four months. The claims of the parties are in conflict, but ac-cording to appellants, the adjuster told them that appellee wouldtake care of everything, that he wanted them to get well, and thatthey should call him when they determined the amount of theirexpenses. Appellee never paid appellants' expenses. More than oneyear after the collision, the appellants brought suit, and the appelleerelied on the Kentucky one-year statute of limitations.' Appellantsmaintained that appellee should be estopped to plead the limitation,in that appellee had obstructed the prosecution of the action withinthe one-year period. 2 The trial court dismissed appellants' claim.Held: Affirmed. Appellants are presumed to know that their actionwill be barred after one year. They had no right to rely on theOlmstead v. United States, 277 U.S. 438, 478 (1928).IKy. Rev. Stat. 413.140 (1) [hereinafter cited as KRS].'Although there is a statute covering this matter, KRS 413.190 (2), it isvaguely worded and is always construed in light of the common law.1966]

Constitutional Law--Connecticut Statute Forbidding the Use of Any Drug, Medicinal Article or Instrument for the Purpose of Preventing Conception Struck Down

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Constitutional Law--Connecticut Statute Forbidding the Use of Any Drug, Medicinal Article or Instrument for the Purpose of Preventing Conception Struck Down

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