"The attorney for Griswold, Yale Law School Professor Thomas Emerson told the Justices at oral argument on March 29-30, 1965, that the right to privacy would not include abortion, because abortions were not done in the bedroom. In response to a question by Justice Black, Emerson told the Justices-repeatedly-that “the right to privacy” would not touch the state prohibitions on abortion: Justice Black: Would your argument concerning these things you’ve been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions? Mr. Emereson: No, I think it would not cover the abortion laws or the sterilization laws, Your Honor. Those-that conduct does not occur in the privacy of the home. […] Justice Brennan: Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being [or “killing the life of a being”], doesn’t it? Isn’t that a rather different problem from conception? <br< Mr. Emerson: Oh, yes, of course. Nevertheless, Emerson was soon forecasting that the Griswold decision “could” be used against abortion laws. By the end of 1965, Emerson had even given a paper at a Michigan Law School symposium that described how “Griswold” could be used against abortion laws."
January 1, 1970