This is a partial transcript of "Special Report With Brit Hume" from Oct. 24, 2005, that has been edited for clarity.


SEN. EDWARD KENNEDY (D), MASSACHUSETTS: Long established rights to privacy are under heavy siege.

SEN. DICK DURBIN (D), ILLINOIS: Concerns have also been raised about some of the things you wrote relative to the right of privacy.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: One of the most important issues that needs to be addressed by you is the constitutional right to privacy.


BRIT HUME, HOST: That is from the Roberts hearings. But privacy, everybody’s talking about it.

Last week, Harriet Miers was said to have stubbed her toe when the nominee and the Senate Judiciary Committee Chairman Arlen Specter had a disagreement over whether she endorsed the so-called Griswold decision on privacy.

He said she did in the conversation with him. She said she didn’t. So what is the Griswold decision and why is everybody so concerned with it?

For answers, we turn to Douglas Kmiec, professor of constitutional law at California’s Pepperdine University. He joins us from nearby Los Angeles.

Professor Kmiec, welcome. The case is Griswold vs. Connecticut, 1965. People may have heard of it. But what about it? What happened in the case of Griswold vs. Connecticut?

DOUGLAS KMIEC, CONSTITUTIONAL LAW PROFESSOR: Griswold was a case testing the constitutionality, Brit, of a Connecticut statute that prohibited the use of contraceptives. And it was challenged by a married couple and the doctors who were assisting them in getting a prescription for contraceptive devices.

The Supreme Court held that, even though the Constitution doesn’t talk about this subject at all, that there’s nothing in the text or history of the document, that there was a protected individual right, which has now been summarized as a privacy right, that allowed this married couple to use contraceptives without the interference of the state of Connecticut.

HUME: Now, some critics of that decision have said that the court could have decided this on other grounds, to wit, for example, that this was a law that was sort of patently unenforceable without invading people’s bedrooms, which hadn’t happened. These people hadn’t been arrested under the law. No one was prosecuting them, correct?

KMIEC: That’s right. This was largely a test case, although it was a criminal statute, and they could have been subject to fine and imprisonment.

But the fact of the matter is, it was largely a statute that went unenforced, and it was largely unenforceable. And so, you’re right. The court could have taken a very judicially restrained posture and simply said that this is one of those statutes that is arbitrary, and unenforceable, and beyond the scope of the law.

But instead, Justice William O. Douglas, writing for the majority of the court, created a phrase, "penumbras," formed by emanations from the text of other provisions of the Constitution...

HUME: Let me — in fact, we have it, in fact. Let me just interrupt you, with apologies here, to read an excerpt from the very passage you’re talking about.

KMIEC: Sure.

HUME: From the Griswold decision, "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one."

Continuing, "The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees."

Now, there was disagreement, one presumes, at the time about whether that was properly decided. Why is it such a hot topic today?

KMIEC: Well, it’s such a hot topic today because it is the poster child case for unenumerated rights for judges deciding cases not on the basis of the ratified Constitution, but on the basis of their own personal views. And the president has said repeatedly that he does not want judges to legislate from the bench.

And more importantly, Griswold has become a building block for later cases. And the specific later cases that it has become a building block for are Roe vs. Wade and all of the remaining abortion cases.

HUME: Explain to me how the Supreme Court got from a right to the privacy in the marriage bedroom to a right to what has become basically a right to abortion on demand? That will strike a lot of people as a leap. Can you describe how the court reached that?

KMIEC: Well, by very bad law, or, as John Hart Ely, formerly of the Harvard Law School and then dean at the Stanford Law School said, "Bad law, bad constitutional law, not even constitutional law, because it didn’t make even an attempt to construe the Constitution."

But this — let me tell you, in a nutshell, the story. They moved from Griswold, which protected the right of a married couple, to another case, which immediately leaped to protecting the right of unmarrieds.

They didn’t really explain that. In fact, they left it so unexplained that Chief Justice Burger, who had been part of the Griswold case, dissented and said, "I don’t see how one precedent can establish the other."

But after those two cases, what got created was a claim that there was a right of individual autonomy bound up in the Constitution which basically immunized individuals, when they asserted it, from state laws.

Well, the state law in Texas that was challenged was the law that said abortions were only permissible when the life of the mother was jeopardized. The Supreme Court of the United States said, in Griswold, we said there was a right of marital privacy. In a case called Eisenstadt vs. Baird, we said there was a right of individual privacy.

And then, in Roe vs. Wade, in a very big leap, said there is a right of individual privacy or liberty, if you will. And the court itself said, "We’re not sure whether this is a privacy right or a liberty right. We just know it’s broad enough to include abortion," and it expanded from there.

HUME: And so that is why everybody is concerned today about Griswold vs. Connecticut. I’ve got one last question that requires a quick answer.

A judicial conservative, believing in judicial restraint, would look at the case of Roe vs. Wade and automatically decide that, because it was wrongly decided, it should be reversed, or perhaps not? You’ve got about 15 seconds.

KMIEC: OK. Well, I think the answer that John Roberts crafted was probably as close to perfect as one can give, and it was basically this.

HUME: Quickly.

KMIEC: Griswold is long decided. It protects a married couple. It doesn’t necessarily determine the abortion question. That question depends on an examination of precedent in a specific case.

HUME: Douglas Kmiec, great to have you. Thanks a million.

Watch "Special Report With Brit Hume" weeknights at 6 p.m. EDT.

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