Five Worst Decisions, Part III

Read Part 2 – Five Worst Decisions. Last time I discussed the fourth worst decision in the history of the Connecticut Supreme Court, Cole v. Steinlauf, 144 Conn. 629 (1957). Today I will discuss the third worst decision, Buxton v. Ullman, 147 Conn. 48 (1959).

Buxton is the most infamous of the four infamous contraceptive decisions between 1940 and 1964, holding that a statute preventing use of drugs or instruments to prevent contraception, even among spouses, and even if the woman’s health is at risk, was constitutional. Buxton was the most extreme of the four cases because one of the women claimed that in her previous pregnancy she had “developed a condition which brought her to the very brink of death.” 147 Conn. at 52.

The decision blandly responded:

It may well be that the use of contraceptives is indicated as the best and safest preventive measure which medical science can offer these plaintiffs. That fact does not make it absolutely necessary for the legislature to accept such a solution in all cases, where there is, as pointed out in the Tileston case (p. 92), another alternative, abstinence from sexual intercourse.

Id. at 58.

While Buxton was unanimous, the 1942 Tileston case was a 3-2 decision, with the dissent making the obviously proper response:

Even if it be conceded that such a course of conduct is reasonably practicable, taking into consideration the propensities of human nature, the resort to such a practice would frustrate a fundamental of the marriage state. The alternative suggested in the argument of the state against permitting qualified physicians to give proper medical advice upon this subject would tend in many cases to cause unhappiness and discontent between parties lawfully married, would stimulate unlawful intercourse, promote prostitution, and increase divorce.

Tileston v. Ullman, 129 Conn. 84, 102-03 (1942) (Avery, J., dissenting).

The U.S. Supreme Court dismissed an appeal in the Buxton case because it was a declaratory judgment action to prevent criminal prosecution, but there was no evidence that anyone had ever been prosecuted. So an arrest was arranged shortly thereafter, and thus was born the case we all know today, Griswold v. Connecticut, 381 U.S. 479 (1965), reversing State v. Griswold, 151 Conn. 544 (1964).

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