The Use and Abuse of History in Compassion in Dying

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Barely thirty years ago, in Griswold v. Connecticut, the Supreme Court discovered that there were certain fundamental rights not expressly to be found in the Constitution, but rather to be teased out of the Bill of Rights by way of the Fourteenth Amendment's Due Process Clause. In that case, a Connecticut statute made it a crime to use any contraceptive device; the question the Court addressed was whether a married couple could be prosecuted for using such devices. The Court held that the Connecticut law was unconstitutional. In the opinion of Justice Douglas, certain explicit constitutional guarantees-the First, Third, Fourth, Fifth, and Ninth Amendments-gave rise to a new, general right of privacy. To use Justice Douglas's famous phrasing: "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Thus, the commonly understood "right of privacy" (which all polite people respected) became quite a different constitutional right. In the succeeding thirty years, the penumbras have lengthened. Griswold was followed by a series of cases that found new avatars of the "right of privacy," particularly in the abortion cases and other related decisions on procreation and child rearing.


Originally published in 1996 by the Harvard Journal of Law & Public Policy.

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