By: Paul Kane and Rosalind S. Helderman, The Washington Post, March 10, 2012: Contribution by Ed O’Keefe
“Waiting For Mr. Roberts”: Is There A Constitutional Right To Contraception?
Is there a constitutional right to privacy underpinning the right to contraception? Suddenly, in this political climate, you can’t be sure, no matter what the U.S. Supreme Court said in 1965.
The high court ruled 7-2 in Griswold vs. Connecticut the state law forbidding the use of contraceptives was unconstitutional, in part because of due process, but mainly because it violated “the right of marital privacy.”
But the court of nearly 40 years ago that produced Griswold, the Warren Court, was one of the country’s most liberal, far more liberal than the current court and its consistent 5-4 conservative majority.
And Griswold’s finding of a right of privacy hiding in the “penumbra” of the Bill of Rights has been mocked over the years by conservatives. There is no absolute certainty that if the issue were brought before the Supreme Court today that Griswold would survive — though there is no certainty that it wouldn’t.
As recently as 2010, Justice Antonin Scalia, a conservative paladin speaking to an audience at UC Hastings College of the Law, dismissed the Griswold ruling as a “total absurdity.”
What exactly did the Griswold ruling say?
The late Justice William O. Douglas wrote the prevailing opinion. Three other justices joined him, and three more joined the judgment for different reasons.
“The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights,” Douglas wrote.
“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs or social conditions,” he said. “This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.
“The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”
The Connecticut case “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this [Supreme] Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ … Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The … very idea is repulsive to the notions of privacy surrounding the marriage relationship.
“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system,” Douglas said. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
The late Justice Potter Stewart, joined by Justice Hugo Black, dissented. Stewart said the Connecticut law might be “asinine,” but he could not find anything in the Constitution to forbid it.
“Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone,” Stewart wrote. “I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”
Griswold applied to married couples, but has since been expanded by the courts to all adults.
Nearly four decades later, contraception is once again under fire. Essentially, the Obama administration ignored the old adage, “Never poke a bear with a stick.” For bear read the U.S. Catholic bishops, who don’t think contraception is proper practice for the 21st century.
In February, U.S. Secretary of Health and Human Services Kathleen Sebelius issued an interim rule, mandating health insurance plans for all employers, including religiously affiliated institutions, include coverage for birth control, sterilization and other preventive services. The rule caused outrage among Catholic leaders and top officials of the Republican Party.
Feeling the heat, Obama then announced a rule modification: Women may have access to free preventive care, including contraceptive services. But if a woman’s employer objects to birth control on religious grounds, then the insurance company will be required to offer the woman contraceptive care directly, without a co-pay.
The policy was slammed repeatedly on the campaign trail by Republican presidential contender Rick Santorum, a conservative Catholic who said even the amended rule was an attack on religious freedom.
The issue ensnared Santorum’s purportedly more sophisticated rival Mitt Romney.
When Republican senators unsuccessfully tried to enact a measure that would allow employers to opt out of any healthcare coverage to which they objected on religious or moral grounds, Romney at first told an interviewer he was “not for the bill.” When the reaction set in from conservatives, Romney said what he meant was that he “strongly supported” the Senate measure, but misunderstood the original question.
Conservative radio hammer Rush Limbaugh turned up the heat under the dispute after a young law school student testified before a congressional panel that contraception was a necessary part of women’s preventive healthcare, Limbaugh said she wanted taxpayers to pay for her having sex. He also called her a “slut” and a “prostitute.”
Last month, a group of U.S. states went further. Seven filed suit in Lincoln, Neb., contending the amended administration rule violates the First Amendment’s freedom of religion guarantee. The suit was joined by several Catholic organizations.
John Witte, Jonas Robitscher professor of law, Alonzo L. McDonald distinguished professor and director of the Center for the Study of Law and Religion Center at Emory University in Atlanta, told The Christian Post the courts probably will rule against the administration.
The Religious Freedom Restoration Act was enacted by Congress, and signed by President Bill Clinton, in 1993. The act prohibited government from putting a substantial burden on individual or group freedom of religion unless there is a compelling government interest. If there is such a compelling interest, the act said, government must show it is acting in the least restrictive way.
The U.S. Supreme Court, in a 6-3 decision in 1997, struck down most of the law. But the majority, led by Justice Anthony Kennedy, left in place the restriction on the federal government even though it excluded state actions.
That interpretation was confirmed in a unanimous 2006 Supreme Court decision involving the importation of natural drugs from South America for religious purposes. Though the natural substance was banned by federal law, Chief Justice John Roberts said in the opinion the Supreme Court agreed with the lower courts — the federal government had failed to demonstrate a compelling interest in banning the sacramental use of the drug.
That violated RFRA, Roberts said.
One bright spot for contraception defenders: Kennedy wrote the 6-3 majority opinion that struck down the Texas sodomy law in 2003, and told the government to get out of the bedroom. He often completes the 5-4 conservative majority now holding sway at the high court, but in 2003 he joined and led the court’s liberals, saying, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home.”
By: Michael Kirkland, UPI, March 11, 2012
“Changing Climate”: Santorum Says Mitt Romney “Doesn’t Tell The Truth” On Health Care…And Other Things
Ahead of two suddenly pivotal primaries in Alabama and Republican presidential candidate, former Pennsylvania senator Rick Santorum, speaks in Cape Giradeau, Mo., on Saturday. (Eric Gay – Associated Press) Mississippi on Tuesday, Republican presidential candidate Rick Santorum on Sunday stepped up his criticism of Mitt Romney, arguing that his primary rival has not told the truth when it comes to his record on health care.
In an interview on NBC’s “Meet the Press,” Santorum told host David Gregory that Romney has sought to mislead voters when it comes to his position on health-care reform as governor of Massachusetts.
“Governor Romney in the state of Massachusetts mandated every person in Massachusetts have to buy health care,” Santorum said. “He doesn’t tell the truth about that either. He said, ‘Oh, it’s only the 8 percent that didn’t have insurance.’ That is simply not true.”
Andrea Saul, a spokeswoman for the Romney campaign, said it was Santorum who was misrepresenting Romney’s position on health care.
“Rick Santorum has a habit of making distortions, exaggerations and falsehoods about Mitt Romney’s record,” Saul said. “Governor Romney has never advocated for a federal individual mandate. He believes in the Tenth Amendment and, as a result, has always said that states should be free to come up with their own health care reforms.”
Santorum charged that on both health care and on climate change, Romney “continues to go out there and tries to misrepresent what he did in Massachusetts because it’s not popular.”
“He was for climate change,”Santorum said. “Man-made global warming. He put caps on CO2. And now that it’s not popular, now that the climate changed, guess who changed along with it? Governor Romney.”
Republican presidential candidate Mitt Romney gestures while speaking to workers and supporters at Thompson Tractor in Birmingham, Ala., on Friday. (Marvin Gentry – Reuters) A Romney spokeswoman did not immediately respond to a request for comment on the interview. Romney has repeatedly defended his health care record by arguing that he supported reform in Massachusetts but does not back it at the federal level.
The ramped-up offensive by Santorum against Romney comes as some supporters of the former senator are urging former House speaker Newt Gingrich (R-Ga.) to drop out and allow Santorum to run a one-on-one race against Romney.
And as the four-way GOP primary slog continues, Santorum himself on Sunday again declined to call on Gingrich to step aside.
“Well, you know, that’s not my job,” Santorum told Gregory when asked whether he’d urge Gingrich to get out of the race. “I’m not going to tell people to get in and out of this race. I didn’t ask Speaker Gingrich to get in. I’m not going to ask him to get out.”
He noted that he hopes a two-man race will take place “sooner rather than later, but we’ll wait and see what the speaker decides.”
By: Felicia Sonmez, The Washington Post, March 11, 2012
“Abandon Ship”: While Waiting For Dust To Settle, GOP Leaders Sharpen Case For Their Own Re-Election
Watching with growing unease as the GOP presidential nomination fight promises to stretch into the spring, Republican leaders on Capitol Hill are making moves to protect their own reelection prospects in the fall.
The aim is to fashion a political and legislative agenda to sharpen the party’s case against President Obama and Democrats, and make a coherent argument for why the Democratic-controlled Senate, and not the GOP-led House, is to blame for the congressional gridlock that has disheartened the public. A side benefit is that the legislative strategy might shift public attention away from some of the social issues that have recently dominated their party’s presidential contest.
While most congressional leaders continue to believe that former Massachusetts governor Mitt Romney will be the nominee, they worry about how long it will take to secure the nomination and the political costs of a drawn-out battle.
“Every day that goes by [without a nominee] is a day that plays to President Obama’s advantage,” said Sen. John McCain (R-Ariz.), who has endorsed Romney and was the party’s 2008 standard-bearer.
While GOP leaders are eager for a nominee to emerge so they can begin a coordinated campaign against the Democrats, they are increasingly convinced that they must move ahead with an agenda of their own.
Last week, House Speaker John A. Boehner (R-Ohio) said that regardless of who the nominee is and when he assumes the role, the core of the GOP argument against the president will be the same.
“Listen, one thing is clear here,” Boehner said Thursday. “ . . . This year’s election is going to be a referendum on the president’s economic policies. . . . The American people are concerned about our economy and concerned about jobs, and that’s going to continue to be my focus.”
And Senate Minority Leader Mitch McConnell (R-Ky.) has sketched out what a joint agenda should look like. “ ‘Obamacare’ should be the number one issue in the campaign,” McConnell told the Weekly Standard. “I think it’s the gift that keeps on giving.” The other top issues, as McConnell sees them, should be the deficit and national debt.
Bread-and-butter topics
One main concern going forward, key Hill Republicans say, is to avoid falling into more social-issue debates, which have hurt the broader party image and could affect down-ballot races for the House and Senate.
“To the extent that the focus in this cycle is on the economy, it’s better for Republicans. I think that’s probably where the stronger case for Republican change can be made,” said Rep. Patrick Meehan (R-Pa.), who managed presidential hopeful Rick Santorum’s 1994 campaign for the Senate but remains neutral in the presidential race. “I think we’re stronger when we’re talking about economics.”
The result is a congressional party determined to show action on bread-and-butter issues that can serve as the core of a unified economic agenda.
“We’ve got plenty of things to worry about here in the House. We’ve got a transportation bill, we’ve got Iran, we’ve got debt and deficit,” said Rep. Allen B. West (R-Fla.). “ Whatever happens with the presidential race will happen with the presidential race. People sent me up here to focus on being a good congressional representative, not worrying about being a cheerleader in a food fight.”
House Republicans will move legislation later this month to repeal a key portion of Obama’s health-care law, days ahead of the Supreme Court’s oral arguments on the legislation. Next week, Rep. Paul Ryan (R-Wis.) is expected to unveil a budget proposal that will slash federal spending and stick closely to last year’s controversial proposal to alter Medicare with private options. Both of these efforts could flow seamlessly into whatever coordinated effort emerges once there is a nominee.
But, while it is widely acknowledged that tax reform will be a key point of argument in the fall campaign, Rep. Dave Camp (R-Mich.), chairman of the tax-writing Ways and Means Committee, said last week that he will not wait to for a presidential nominee decide how to move ahead on the issue.
“I’m going to continue to do that regardless of when we get a nominee,” Camp said. “I’ve got an agenda that I’ve been working on for a year and a half, and I’m going to keep doing that.”
House Republicans had hoped to be able to take some of the presidential nominee’s proposals and offer them on the chamber floor, while Senate Republicans might use their rights to offer them as amendments. If the nomination fight lasts deep into the spring, there will be little to no time for such stage battles in Congress.
Hedging on health care
One area of legislative indecision has already emerged. While the House GOP is moving ahead with its health-care debate, Senate Republicans have not decided whether to push for another vote repealing the health-care law. Action in the Senate could shine a spotlight on what Republicans believe will be a key issue of the fall campaign, but another vote could also give embattled swing-state Democrats the chance to vote for repeal, bolstering their independent credentials.
There is deep division between House and Senate Republicans about the consequences of a long primary season. Some, like McCain, thinks it hurts Republicans. Others, including McCain’s close friend Sen. Lindsey O. Graham (R-S.C.), say the lengthy process has made Romney a better candidate, who will benefit from having had to fight for the nomination.
GOP leaders had anticipated that Romney would wrap up the nomination by Super Tuesday, and they would then begin the routine cooperation in which the presidential candidate defines a daily message that members of Congress amplify. For the immediate future, they will have to wait on that.
Gingrich’s top ally in Congress, Rep. Joe Barton (R-Tex.), is trying to build support by arguing that his candidate can energize the base and give down-ballot candidates something to rally around. Barton says that when he first ran, in 1984 on the same ticket as Ronald Reagan and Phil Gramm, he linked his candidacy to the popular president and the Senate candidate from Texas.
“Everything I did was Reagan, Gramm, Barton. They didn’t know me. But they knew them,” he said.
Contraception debate
And lawmakers acknowledge that the GOP message got derailed in February, when the issue of contraceptive coverage in the health-care law consumed the presidential campaign. As the discussion focused on whether the federal government could compel institutions connected to the Catholic Church to cover contraception costs in insurance programs, Republicans thought they were on high ground, and Sen. Roy Blunt (R-Mo.) introduced an amendment to allow exemptions.
Then when Santorum publicly declared his opposition to the use of contraceptives, the tables began to turn. The House Oversight and Government Reform Committee held a hearing on contraception, in which no women testified; the optics of that miscalculation were amplified by the politics of the presidential primary debate with adverse consequences for the GOP on the Hill.
Blunt, a key Romney backer, said that the other candidates in the race must decide how much longer they want to deprive Romney of the chance of assuming the mantle of the nominee. “They have to decide on their own that they’re no longer serving a positive purpose,” Blunt said.
Mitt, Grits And Grit: “He Knows How To Hold A Baby” Y’all
“I’m learning to say ‘y’all,’ and I like grits. Things, strange things are happening to me.”
Those are the words of Willard Mitt Romney campaigning in Pascagoula, Miss., this week.
Wow. Note to Mitt: As a Southerner, I’ve never known us to find caricature endearing. But welcome to the Deep South anyway, Mitt. I wonder if you’ve been introduced to one of my favorite Southern sayings: the backhanded “Bless your heart.”
By all accounts you’re going to need it. No one expects you to do well on Tuesday when Mississippi and Alabama hold their primaries.
(Kansas holds its caucuses on Saturday, and Rick Santorum is leading the polls there.)
When Gov. Phil Bryant of Mississippi endorsed Romney on Thursday, he tried his best to humanize him, saying: “He just has a warm, comfortable way about him. I like to see a man when he’s holding a baby. And he looks like he’s held a baby before. Let me tell you, this man is connecting with the people of this nation, and it is about those simple things.” He knows how to hold a baby? Nice try, governor. Bless your heart.
According to Gallup, Mississippi is the most conservative state in the union, and Alabama clocks in at No. 4. Romney continues to struggle with more conservative voters. In the 2008 elections, 7 out of 10 Mississippi primary voters described themselves as born-again or evangelical Christians. Romney has also struggled with that group.
Last Tuesday, in the primaries in the states of Oklahoma, Georgia and Tennessee, about 70 percent of voters said it was important that their candidate share their religious views. Romney won no more than a quarter of those voters in each state. Welcome to the Southern G.O.P. Bless your heart.
Some argue that this is inconsequential and that all Romney has to do is win the nomination and rank-and-file Republicans will fall in line. They even argue that his less-than-strident, often inconsistent, views may be an asset in a postnomination tack to the middle.
It is true that these states are in no danger of swinging Democratic. Mississippi and Alabama haven’t voted Democratic since 1976. And since Mississippi started holding primaries, no Republican candidate except the eventual presidential nominee has won the state, according to Catherine Morse, a University of Michigan government and political science librarian.
In fact, Obama lost both states to John McCain in 2008 by large margins, and the votes were largely along racial lines. In both states, 88 percent of whites voted for McCain, while 98 percent of blacks voted for Obama.
Obama will not win Mississippi and Alabama, period. But that’s not the issue. The issue is enthusiasm, which has a way of bleeding across borders and ideological boundaries.
In elections, enthusiasm has two sources: for your candidate or against the other. We know well that there is a high level of hostility toward Obama on the right, but he still maintains a number of liberal devotees. Although there are some on the left who have softened on him, he still has a wide swath of passionate supporters who seem to feel that he is moving in the right direction and deserves a chance to finish the work he has started. In fact, according to Gallup, at this point in the race, Democrats are more enthusiastic about Obama than Republicans are about Romney.
The elections will boil down to a duel between anger and optimism, and in general elections optimism wins. Energy wins. Vision wins.
If the message that emerges from the nominating process is that Republican voters lack confidence in their candidate, that is not a message that can be easily sold to swing voters. It’s hard to point to your candidate’s good qualities when you’re using your hands to hold your own nose.
If the Republican nominee can’t appeal to his own base, how can he expect to draw from the middle and the left?
This is the conservative conundrum.
The Republican Party had an opening as wide as the Gulf of Mexico to unseat President Obama, but it appears that it could close with a weak candidate. The president has been hammered by a sputtering economy and hemmed in by an intransigent Congress. All the Republicans needed was a presidential nominee who could capture their discontent on a gritty, granular level and put a positive, big-picture, forward-looking face on it.
Instead, they find themselves with a scraggly lot of scary characters, each with a handicap larger than the next. And the one who’s likely to win the nomination is the one whom the base has the biggest doubts about. He has the good looks of a president but not the guts of one. The only view that he has consistently held is that he wants to win. Everything else is negotiable.
He projects the slick feel of a man who’s trying to sell you something that you don’t want by telling you something that you don’t believe. People don’t trust and can’t fully endorse it, even the ones who deeply dislike the president. In fact, poll after poll finds that the longer the nomination fight drags on and the more people come to know Romney, the higher their unfavorable opinions of him climb.
Furthermore, postnomination pivots have become more difficult in a world driven by YouTube, social media and citizen activism, where prenomination politicking lives forever online in a candidate’s own voice (and often on video).
Unfortunately for Romney, grits don’t give you grit. Dabbling in dialectic speech won’t quench people’s thirst for straight talk. Being called warm and comfortable doesn’t remove the gut feeling that you are cold and rigid. There is something missing from the core of the man, and people can see straight through him.
That makes places like Mississippi a real litmus test — of Romney’s ability to convert his base by connecting with it. Mississippi is a world away from Massachusetts. It’s a ruby-red state and the heart of conservatism. Mississippi is where he has to sell himself.
Bless his heart, y’all.
By: Charles Blow. Op-Ed Columnist, The New York Times, March 9, 2012
“Flawed Advice”: Usual GOP Suspects Beating The Drum For Another Ill-Advised Middle East War
It’s hard to believe, especially after the tragic decision to invade Iraq over nonexistent weapons of mass destruction, that the Republican candidates for president and even the Republican candidates for Wisconsin’s soon-to-be-vacant U.S. Senate seat appear all to be on the same page — we’ve got to attack Iran to prevent the country from developing a nuclear weapon.
This, despite everyone from the chairman of the Joint Chiefs of Staff to the heads of this country’s intelligence agencies insisting that attacking Iran would be a foolish thing for the United States — or Israel, for that matter — to do.
Gen. Martin Dempsey, the chairman of the Joint Chiefs, claims that despite all the rhetoric that emanates from Iran, “We are of the opinion that Iran is a rational actor.” But, if Iran is attacked, the results would destabilize not only that country, but the entire region, he said in a CNN interview.
An attack on Iran would “guarantee that which we are trying to prevent: an Iran that will spare nothing to build a nuclear weapon,” former CIA chief Michael Hayden commented last month, adding that the intelligence community isn’t at all sure that Iran is even trying to build an atomic bomb.
In a report last week in The New York Times, U.S. intelligence analysts say they continue to believe that there is no hard evidence that Iran has decided to build a nuclear weapon. Yes, the country seems to be preserving its options to build a bomb, they admit, but that decision has been put off for sometime in the future, they believe.
Ron Burgess, the director of the Defense Intelligence Agency, told Congress that “the agency assesses Iran is unlikely to initiate or provoke a conflict.” Even Meir Deagan, who headed Israel’s intelligence agency Mossad until last year warns that attacking Iran “would mean regional war, and in that case you would have given Iran the best possible reason to continue the nuclear program.”
Peter Beinart of the Web magazine the Daily Beast remarked: “I’ve never seen a more lopsided debate among the experts paid to make these judgments. Yet it barely matters. So far, the Iran debate has been a rout, with the Republican presidential candidates loudly declaring their openness to war and President Obama unwilling to even echo the skepticism of his own security chiefs.”
Yes, the usual suspects are all there, from Elliott Abrams to John Bolton, the same neo-cons who sold us on Iraq, pounding the drums to once again attack another Mideastern country, apparently not learning anything from the a 10-year war that cost America trillions of dollars and many thousands of dead and maimed young people.
“How can it be, less than a decade after the U.S. invaded Iraq, that the Iran debate is breaking down along largely the same lines?” asked Beinart.
What would make it worse is if the country once again accepts their flawed advice.
By: Dave Zweifel, Editor Emeritus, The Capital Times, March 9, 2012
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