The resignation of Supreme Court Justice Sandra Day O’Connor and the still possible retirement of ailing Chief Justice William Rehnquist may threaten long-established judicial protections of personal privacy and undermine the foundations on which women’s reproductive freedoms rest. Forty years ago, the Supreme Court ruled decisively that married women have the right to use contraceptives. That historic case, Griswold v. Connecticut, led to dramatic changes in American life that we are still sorting out, and also provided the foundation for later expanding privacy protections to the unmarried and to early abortion.

Current controversy over replacing Justice O’Connor, a moderate on most social issues and a fierce defender of women’s rights, tends to focus on abortion. In fact, the much broader doctrine of privacy could be at stake if two new conservative justices join the Supreme Court.

The story of Griswold begins in 1961, when Estelle Trebert Griswold, then 61 and the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton of Yale University’s Medical School, opened a small birth control clinic in downtown New Haven. They intended to challenge the validity of the state’s ban on birth control and, indeed, several days later, they were arrested for dispensing contraceptives to a married couple and were fined $100 each.

When their case reached the Supreme Court in 1965, seven of nine justices agreed that a zone of privacy protecting birth control inheres in what the justices variously called a"penumbra" (a shaded rim between darkness and light) of the Constitution or in"emanations" from specific provisions in the Bill of Rights, such as protection from unwarranted search and seizure. In other words, although the Constitution and the Bill of Rights do not explicitly guarantee privacy rights to individuals, such rights were said to be implicit within them.

Griswold v. Connecticut paved the way for Eisenstadt v. Baird in 1972, which extended the same privacy protections—and thus the right to birth control—to unmarried women. It opened the door the following year to the historic 7 to 2 ruling in Roe v. Wade, which expanded the privacy doctrine to abortion, granting women and their doctors the legal right not just to prevent, but also to terminate, unwanted early pregnancies. In 2003 the Court once again drew upon the Griswold doctrine of privacy, in Lawrence v. Texas, to protect the right to consensual homosexual relations.

In Planned Parenthood v. Casey in 1992, however, the court narrowly (5-4) upheld the core privacy doctrine of Roe , but also introduced a new standard, allowing restrictions on abortions even in the first trimester, so long as they do not present what the justices called an"undue burden" on women. This has allowed many states to enact 24-hour waiting periods, mandatory scripts expressing reservation about abortion, and parental consent laws, among other requirements.

The Casey close call was a warning.  Since the appointment of Justice Ruth Ginsburg, the Supreme Court has had a 6-3 margin of pro-choice support. However, Justice Anthony Kennedy voted against the majority in the recent abortion decision in Carhart v. Nebraska, which knocked down restrictions on so-called partial birth abortion procedures.  And we have since learned that even in Casey, Justice Kennedy wavered and was strongly influenced by Justice O’Connor.

This means that appointment of just one new conservative justice to the Court could threaten constitutional protections, not just for abortion, but for the privacy doctrine, which protects contraception as well.

Remember that Griswold overturned an 1879 Connecticut law restricting sexual speech and commerce in all materials related to sexuality, birth control and abortion. It was the final blow to Anthony Comstock—a self-appointed moral arbiter whose evangelical fervor had captured Victorian-era politics and left a web of state and federal statutes intended to root out and prohibit behavior that he, and those who embraced his cause, considered obscene or sinful.

Comstock exploited the tensions of gender, race and class that beset American society after the Civil War, a turbulent era rather like our own. In his later years, he famously indicted (though failed to convict) birth-control pioneer Margaret Sanger for publishing information about contraception, though she did later go to jail for actually dispensing it in America’s first family planning clinic. In those days, a typical woman’s life included four to eight pregnancies.

Margaret Sanger’s coalition of women’s rights advocates, civil libertarians, physicians and social scientists has grown into an enduring global family planning movement. These pioneers of modern feminism understood that the ability to plan and space one’s children is a necessary condition for women to achieve equality. But now, one or certainly two new conservative Supreme Court justices could send the responsibility for regulating abortion and all family planning practices back to state legislatures, where the intrusive Comstock laws originated.

Even today, nearly half of all U.S. pregnancies remain unintended, and nearly half of those result in abortion. This is why polls show that the vast majority of Americans reject the extremism of any minority and do not want a reversal of the judicial decisions that protect their privacy and their rights. Doctrines of privacy and equality for women are simply not separable: eroding one imperils the other. And all this may rest on the shoulders of just one new justice.

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This article was first published by tompaine.com and is reprinted with permission of the author. The article was adapted from the cover story of the summer issue of Ms. Magazine. Read the full article online: http://www.msmagazine.com/summer2005/birthcontrol.asp