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During his confirmation hearing (video, at minute 10:18), Robert Bork talked about a case called Griswold, which eventually ended up in the Supreme Court.

The Connecticut law apparently "prohibited any person from using any drug, medicinal article or instrument for the purpose of preventing conception." (ibidem., internal quotation marks omitted).

Bork, as seen in the video at 1, thought the law was unenforceable because the police would never obtain a warrant to enter a marital bedroom to find out whether the couple was using contraceptives, nor could the police get a warrant to wiretap and find out whether the couple was using contraceptives. Basically, the police would not be able to get evidence that the couple was using contraceptives.

  1. But was the selling of contraceptives legal? Why would Connecticut ban the use of contraceptives, and not contextually ban its selling? If the selling was a crime too, then it would make sense that the couple would not get contraceptives in the first place. So, for practical purposes, it would not matter whether they could get evidence of the crime, because a couple would be impeded from the using of contraceptives by their inability to find them legally.

  2. Moreover, it is not clear to me whether Bork ever dealt with this case as a Judge. The Wikipedia page of the case says that "the conviction was upheld by the Appellate Division of the Circuit Court, and by the Connecticut Supreme Court." (link), while Bork "was a circuit judge for the United States Court of Appeals for the District of Columbia Circuit" (link), so it would appear that Bork never dealt with this case, but I am not sure.

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  • They could purchase the contraceptives in a state where they're legal (but probably not through mail order, as that would violate Comstock).
    – Barmar
    Commented Aug 26 at 17:11

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Q: But was the selling of contraceptives legal?

No.

Griswold v. Connecticut (1965)

At issue in Griswold v. Connecticut was the Comstock law from Connecticut passed in 1879 that prohibited the sale and public display of contraceptives.

Q: Why would Connecticut ban the use of contraceptives, and not contextually ban its selling?

Connecticut banned both sale and use.

Connecticut Passes Obscenity Law; Bans Contraceptives

On February 7, 1879, Senator Carlos Smith of New Haven introduced a bill to the Connecticut state legislature entitled, An Act to Amend an Act Concerning Offenses against Decency, Morality and Humanity. In order to avoid glorifying obscene material, local papers avoided detailing just what the amendments were, but thanks to support from Chairman of the Temperance Committee for the House, P.T. Barnum, the bill made it into law on March 28, 1879.

While Connecticut was just one of 24 states that ultimately passed obscenity and contraception statutes mirroring the Comstock Law, its legislation proved to be the most restrictive. Most states regulated the sale and advertising of contraceptives; Connecticut banned the use of contraceptives altogether.

Judge Bork was discussing constitutional protections for privacy. Griswold was merely used as an example of how amendments to the Constitution do so.

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    In case anyone is wondering, it is the same P.T. Barnum as the circus owner.
    – Barmar
    Commented Aug 26 at 17:10

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