Yet the concurring Justices have apparently forgotten the logic in this case. In this case in particular, it was obviously easier for the Cannabis Cooperative to go to Court, than for terminally ill patients to devote their limited energies to doing so. But then Griswold was decided in 1965, and it is unclear how the case would come out if presented for the first time today. Perhaps our current Supreme Court would approve of injunctions prohibiting the sale of contraceptives. Perhaps they would concur instead, and simply make clear that while distributors of contraceptives can be jailed, a couple using them might have a defense if criminally prosecuted.
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Message Boards Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.